I also note that the “subject to the jurisdiction means allegiance” argument is extremely dangerous to follow. The contrapositive goes that if someone is no longer “allegiant” to the United States, they are not “subject to the jurisdiction”. The amendment doesn’t state that the person has to be subject at the time of the birth, and a broad enough view could take it to mean that if at any time they are not subject, they can no longer be citizens of the United States.
And what does it mean to be “allegiant” here? That’s not in the Constitution. Maybe it means “they were not an illegal immigrant or foreign diplomat”. But maybe it includes “they performed terrorism”, that’s certainly not an act done by someone allegiant to the United States. And then maybe it includes “they went to a protest against the government” or “they broke the law” or “they expressed un-American views”? Certainly I would not put it past this administration, or a future administration, to reach for this interpretation. And if the core argument here is already decided, what will be left to prevent this?
Citizenship is a clear line in the sand, and smudging it here destroys its sanctity entirely.
Another dangerous angle here is to the children of the children of illegal immigrants. They’re likely not citizens of their grandparents homeland (most countries only pass on citizenship to the children of citizens that lived in the country), and they’ve grown up thinking that they’re certainly American citizens. But if their parents weren’t citizens, then they too are not citizens, and neither are their descendants. Many of them only speak English and know no one outside of the United States. This will create an entire caste of stateless people who can legally exist nowhere.
I disagree with your understanding of common law, and your reading of Ark
Coke (basically the formulator of the common-law understanding of birthright citizenship) goes into a fairly detailed explanation of what "legiance" is, and it's not the mere de facto subjection of jurisdiction, but is also the desire of the sovereign to subject the individual to his jurisdiction. The basic idea is that 'legiance' comes with grants from the sovereign to the individual, and obligations from the individual to the sovereign. The sovereign is free to decide and exclude people from such a regime of protection... but open borders were the norm in the pre-liberal age anyway, as actual economic and social privileges were determined by class and birth, irrespective of one's "citizenship".
It should be noted that "illegal immigration" did not exist at the time Ark was born, as the US had pretty much allowed everyone entry, and everyone allowed entry was granted certain rights and privileges.. with the exception of Indians, who were governed, not by a principle of extraterritoriality (as were diplomats), but the underlying assumption was them not being ready, at some kind of ontological level, for citizenship. The US treatment of Indians was generally inconsistent, and regulated by specific treaties with tribes, rather than precise legal principles.
The idea of a mass of people sneaking across the border, and the idea that this would somehow be officially opposed by the government and the country at large, yet at the same time not stymied was not within the conceptual scope of the 1890s.
But indeed, despite the lack of extraterritoriality (Indians were tried under US/Federal law, if the victim of a given crime was not an Indian), Indians born within the territory of the United States were not magically citizens.. though this theory had actually never been mentioned or tested in court, this seems to be the implication.
Clearly Ark establishes that people allowed into the United States and granted the ability to participate in its life, either temporarily or permanently, are fully subject to its jurisdiction, and children born to such people are citizens by virtue of inheriting this state on a permanent basis. The fact that the US had, at some point in the future, decided that it no longer deemed Chinese as desirable, could not retroactively revoke the citizenship of those born during a regime where such individuals were rightfully resident.
I’ve a question: if anti-birthright lawyers proved successful in arguing that children born on US soil of foreign parents do not fall under the “jurisdiction” of the Federal government, then can’t one argue that what ICE does is also illegal (it’s not up to the feds to deport, as they have no jurisdiction)?
Also, isn’t Vance’s attack of centuries old rulings a precedent a rebuttal of other amendments, like the 2nd?
Pardon my ignorance if my questions are too naive.
Another persuasive article. I only wonder if you didn’t dismiss “reside” a little too fast. Does someone on a tourist visa with a home outside the US unquestionably “reside” in the US? And don’t we assume that the baby “resides” with its mother? British common law and American precedents do not engage that question, so there seems to be room to take a fresh look. But you completely convince me that if you do “reside” in the US, lawfully or unlawfully, any kids born here are US citizens. The kids haven’t themselves broken any law, and if they grow up here it seems absurd as well as mean-spirited (and unlawful) to see them as anything but American
Being a fanboy is just not in my DNA. I'll diss my at-the-time favorite singer or tennis, soccer, or basketball player, find fault with actors who allow me vicariously to live the full range of human feeling and even yell out loud while alone at authors I adore.
But your nuance and quiet and supported confidence that is never dictatorial and always open to persuasion make me look forward to Adam's view. I appreciate that you judiciously choose your cases for commentary even if I sometimes find myself wanting to know what you think about more cases.
So, when you wrote, "I am diffident about writing on this issue, both because there has already been abundant commentary and because my view aligns with the conventional wisdom: the Executive Order is inconsistent with the Fourteenth Amendment. Still, there is enough storage space on the Internet for one more think-piece, " I screamed, startling my sleeping pooch, "but none of them are YOUR view!"
I agree with your conclusion and arguments. But I'm not sure about this: "if an enemy invaded Britain and was occupying the territory, the occupier’s children wouldn’t become British citizens because the territory would be under the authority of the occupier, not the King."
That seems to raise lots of questions about invaders and occupation. If an enemy invades but does not successfully occupy (i.e. the sovereign can still exercise authority to arrest them) are the children of invaders born in that territory citizens? I think so, at least under the 14th Amendment, but I have heard the pro-birthright citizenship advocates assert that it would not cover invaders (regardless of their success). If the sovereign could theoretically exercise authority but chooses not to (say, s/he decides that for the time being it is not worth using force to expel a small group of Quebecois occupying a bunker in Maine), are their children citizens because they are nominally subject to the sovereign's authority even though the territory is under the authority of the occupier? At what point does the sovereign's unexercised authority change from a legal fiction to non-existent, for jurisdiction/authority purposes? I think even in the British example there would be many circumstances of invasion/occupation in which a King would maintain he has rightful authority over the territory even if it has been effectively negated in some portion for some amount of time.
Switching to "invasion," does it matter if the Quebecois no longer want to be Canadian and aren't invading on behalf of Canada but they do want to overthrow the U.S. government and unite with France? Does it matter whether their chances are realistic? Would a child born at Waco during the standoff have birthright citizenship? Would a million "illegal" immigrants who desire only to become legal residents of the United States nevertheless be invaders if they took over a county while trying to make their case?
Again, I agree with your analysis. I just think there are some genuinely interesting nuances to this "subject to the jurisdiction thereof" question, even if they're not the nuances that matter to the administration.
Thanks for writing a well balanced and almost concise explanation of the whole situation.
I don't remember you addressing the potential solution being a new constitutional amendment that would carefully clarify the issues involved. Smart people should be able to draft something definitive that's still only three or four sentences long.
There was a reference to not having dual citizenship. I thought that was a thing. Years ago I had a friend who was Swiss who married an American girl. I remember him mentioning that his children have dual citizenship. Is that incorrect?
Dual citizenship absolutely is a thing, though some countries (which does not include the US) do not allow it. For example, people with Japanese citizenship and another citizenship at birth have to give up one by the time they turn 22.
Regarding a constitutional amendment, I assume it was ignored because it’s a complete nonstarter. Half of the country believe in birthright citizenship for all, and the other half doesn’t. How are you supposed to pass a constitutional amendment choosing one option, when that requires a supermajority of congress and the states?
There's a broader problem lurking behind your good argument. Which is that all the anti-birthright people are motte and bailey'ing the parents and the child.
The 14th Amendment talks about whether the CHILD is subject to jurisdiction. BORN IN THE United States and subject to the jurisdiction thereof.
But all the arguments immediately shift to what the PARENTS are doing. They're here illegally. They're foreign nationals. They owe allegiance to the Emperor of China. Etc. And that makes me want to scream THAT'S NOT THE QUESTION HERE!!!!!
Even if you adopt some sort of "allegiance" interpretation of the word "jurisdiction" (and of course the provision says "jurisdiction", not "allegiance"), the person who would have to have this hypothetical "allegiance" is the child. You have to know that somehow this infant actually owes their allegiance to some foreign power. And of course, it's silly to even talk in those terms-- infants don't owe allegiance to any governments!
But, they can be subject to governments' jurisdiction-- e.g., child protective services, and a divorce court, have power to issue orders as to the disposition of the infant. But not as to children of diplomats, and in the 19th Century, not as to Indian children born in Indian territory under the auspices of a tribe.
It's not surprising this motte and bailey exists, because of course the anti-birthright folks are really pissed at what the parents are doing, not the child. But the 14th Amendment, whatever question it asks, asks of it at the child.
I also note that the “subject to the jurisdiction means allegiance” argument is extremely dangerous to follow. The contrapositive goes that if someone is no longer “allegiant” to the United States, they are not “subject to the jurisdiction”. The amendment doesn’t state that the person has to be subject at the time of the birth, and a broad enough view could take it to mean that if at any time they are not subject, they can no longer be citizens of the United States.
And what does it mean to be “allegiant” here? That’s not in the Constitution. Maybe it means “they were not an illegal immigrant or foreign diplomat”. But maybe it includes “they performed terrorism”, that’s certainly not an act done by someone allegiant to the United States. And then maybe it includes “they went to a protest against the government” or “they broke the law” or “they expressed un-American views”? Certainly I would not put it past this administration, or a future administration, to reach for this interpretation. And if the core argument here is already decided, what will be left to prevent this?
Citizenship is a clear line in the sand, and smudging it here destroys its sanctity entirely.
Another dangerous angle here is to the children of the children of illegal immigrants. They’re likely not citizens of their grandparents homeland (most countries only pass on citizenship to the children of citizens that lived in the country), and they’ve grown up thinking that they’re certainly American citizens. But if their parents weren’t citizens, then they too are not citizens, and neither are their descendants. Many of them only speak English and know no one outside of the United States. This will create an entire caste of stateless people who can legally exist nowhere.
I wrote an article on this a few weeks ago.
https://annoyances.substack.com/p/wong-kim-ark-and-anchor-babies
I disagree with your understanding of common law, and your reading of Ark
Coke (basically the formulator of the common-law understanding of birthright citizenship) goes into a fairly detailed explanation of what "legiance" is, and it's not the mere de facto subjection of jurisdiction, but is also the desire of the sovereign to subject the individual to his jurisdiction. The basic idea is that 'legiance' comes with grants from the sovereign to the individual, and obligations from the individual to the sovereign. The sovereign is free to decide and exclude people from such a regime of protection... but open borders were the norm in the pre-liberal age anyway, as actual economic and social privileges were determined by class and birth, irrespective of one's "citizenship".
It should be noted that "illegal immigration" did not exist at the time Ark was born, as the US had pretty much allowed everyone entry, and everyone allowed entry was granted certain rights and privileges.. with the exception of Indians, who were governed, not by a principle of extraterritoriality (as were diplomats), but the underlying assumption was them not being ready, at some kind of ontological level, for citizenship. The US treatment of Indians was generally inconsistent, and regulated by specific treaties with tribes, rather than precise legal principles.
The idea of a mass of people sneaking across the border, and the idea that this would somehow be officially opposed by the government and the country at large, yet at the same time not stymied was not within the conceptual scope of the 1890s.
But indeed, despite the lack of extraterritoriality (Indians were tried under US/Federal law, if the victim of a given crime was not an Indian), Indians born within the territory of the United States were not magically citizens.. though this theory had actually never been mentioned or tested in court, this seems to be the implication.
Clearly Ark establishes that people allowed into the United States and granted the ability to participate in its life, either temporarily or permanently, are fully subject to its jurisdiction, and children born to such people are citizens by virtue of inheriting this state on a permanent basis. The fact that the US had, at some point in the future, decided that it no longer deemed Chinese as desirable, could not retroactively revoke the citizenship of those born during a regime where such individuals were rightfully resident.
I’ve a question: if anti-birthright lawyers proved successful in arguing that children born on US soil of foreign parents do not fall under the “jurisdiction” of the Federal government, then can’t one argue that what ICE does is also illegal (it’s not up to the feds to deport, as they have no jurisdiction)?
Also, isn’t Vance’s attack of centuries old rulings a precedent a rebuttal of other amendments, like the 2nd?
Pardon my ignorance if my questions are too naive.
Another persuasive article. I only wonder if you didn’t dismiss “reside” a little too fast. Does someone on a tourist visa with a home outside the US unquestionably “reside” in the US? And don’t we assume that the baby “resides” with its mother? British common law and American precedents do not engage that question, so there seems to be room to take a fresh look. But you completely convince me that if you do “reside” in the US, lawfully or unlawfully, any kids born here are US citizens. The kids haven’t themselves broken any law, and if they grow up here it seems absurd as well as mean-spirited (and unlawful) to see them as anything but American
Being a fanboy is just not in my DNA. I'll diss my at-the-time favorite singer or tennis, soccer, or basketball player, find fault with actors who allow me vicariously to live the full range of human feeling and even yell out loud while alone at authors I adore.
But your nuance and quiet and supported confidence that is never dictatorial and always open to persuasion make me look forward to Adam's view. I appreciate that you judiciously choose your cases for commentary even if I sometimes find myself wanting to know what you think about more cases.
So, when you wrote, "I am diffident about writing on this issue, both because there has already been abundant commentary and because my view aligns with the conventional wisdom: the Executive Order is inconsistent with the Fourteenth Amendment. Still, there is enough storage space on the Internet for one more think-piece, " I screamed, startling my sleeping pooch, "but none of them are YOUR view!"
So, thank you again for a great read.
I agree with your conclusion and arguments. But I'm not sure about this: "if an enemy invaded Britain and was occupying the territory, the occupier’s children wouldn’t become British citizens because the territory would be under the authority of the occupier, not the King."
That seems to raise lots of questions about invaders and occupation. If an enemy invades but does not successfully occupy (i.e. the sovereign can still exercise authority to arrest them) are the children of invaders born in that territory citizens? I think so, at least under the 14th Amendment, but I have heard the pro-birthright citizenship advocates assert that it would not cover invaders (regardless of their success). If the sovereign could theoretically exercise authority but chooses not to (say, s/he decides that for the time being it is not worth using force to expel a small group of Quebecois occupying a bunker in Maine), are their children citizens because they are nominally subject to the sovereign's authority even though the territory is under the authority of the occupier? At what point does the sovereign's unexercised authority change from a legal fiction to non-existent, for jurisdiction/authority purposes? I think even in the British example there would be many circumstances of invasion/occupation in which a King would maintain he has rightful authority over the territory even if it has been effectively negated in some portion for some amount of time.
Switching to "invasion," does it matter if the Quebecois no longer want to be Canadian and aren't invading on behalf of Canada but they do want to overthrow the U.S. government and unite with France? Does it matter whether their chances are realistic? Would a child born at Waco during the standoff have birthright citizenship? Would a million "illegal" immigrants who desire only to become legal residents of the United States nevertheless be invaders if they took over a county while trying to make their case?
Again, I agree with your analysis. I just think there are some genuinely interesting nuances to this "subject to the jurisdiction thereof" question, even if they're not the nuances that matter to the administration.
What a pity it isn’t enough to just say, “Because the Fourteenth Amendment says so.”
Thanks for writing a well balanced and almost concise explanation of the whole situation.
I don't remember you addressing the potential solution being a new constitutional amendment that would carefully clarify the issues involved. Smart people should be able to draft something definitive that's still only three or four sentences long.
There was a reference to not having dual citizenship. I thought that was a thing. Years ago I had a friend who was Swiss who married an American girl. I remember him mentioning that his children have dual citizenship. Is that incorrect?
Dual citizenship absolutely is a thing, though some countries (which does not include the US) do not allow it. For example, people with Japanese citizenship and another citizenship at birth have to give up one by the time they turn 22.
Regarding a constitutional amendment, I assume it was ignored because it’s a complete nonstarter. Half of the country believe in birthright citizenship for all, and the other half doesn’t. How are you supposed to pass a constitutional amendment choosing one option, when that requires a supermajority of congress and the states?
There's also the issue of mixed parentage. If I'm half chinese, which half is "allegiant"?
There's a broader problem lurking behind your good argument. Which is that all the anti-birthright people are motte and bailey'ing the parents and the child.
The 14th Amendment talks about whether the CHILD is subject to jurisdiction. BORN IN THE United States and subject to the jurisdiction thereof.
But all the arguments immediately shift to what the PARENTS are doing. They're here illegally. They're foreign nationals. They owe allegiance to the Emperor of China. Etc. And that makes me want to scream THAT'S NOT THE QUESTION HERE!!!!!
Even if you adopt some sort of "allegiance" interpretation of the word "jurisdiction" (and of course the provision says "jurisdiction", not "allegiance"), the person who would have to have this hypothetical "allegiance" is the child. You have to know that somehow this infant actually owes their allegiance to some foreign power. And of course, it's silly to even talk in those terms-- infants don't owe allegiance to any governments!
But, they can be subject to governments' jurisdiction-- e.g., child protective services, and a divorce court, have power to issue orders as to the disposition of the infant. But not as to children of diplomats, and in the 19th Century, not as to Indian children born in Indian territory under the auspices of a tribe.
It's not surprising this motte and bailey exists, because of course the anti-birthright folks are really pissed at what the parents are doing, not the child. But the 14th Amendment, whatever question it asks, asks of it at the child.