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PaperclipPerfector  12d ago (text post)   33621 thread views

Culture War Roundup for the week of February 24, 2025

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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?

The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).

Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.

A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.

Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.

...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.

EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.

To raise a question for the "Pro-Birthright Citizenship" camp: Why aren't the children of lower-ranked diplomatic personnel covered?

The standard answer would be that diplomatic immunity means that a person isn't subject to US law. That problem with this is that most consulate employees do NOT get diplomatic immunity.

The Canadian Ambassador (and his immediate family) has diplomatic immunity; he can start bar fights safe in the knowledge that he's immune to prosecution, not matter how blatantly he breaks the rules. But the Canadian Ambassador is just one guy. His staff DO NOT get personal immunity; they only get immunity when it comes to official acts. And their spouses don't even get that protection.

So, let's imagine that a Canadian Consulate has a computer guy to help the Consulate with Tech Support. This computer guy is married and his wife (also a Canadian Citizen) lives with him in the US. They have a child in the US hospital. This child gets no diplomatic immunity and is born to a woman who has no diplomatic immunity and a father who's mostly not entitled to diplomatic immunity except as it relates to his work.

(Caveat: It's very probable that US Prosecutors would choose not to prosecute minor crimes, and would only move forward with major crimes given the approval of the Canadian Government, but if we're talking about constitutional requirements 'Probably would choose not to do that' != 'Does not have the authority to do that.')

There are all kinds of reasons why the child wouldn't, in practice, get a US passport. But if the claim is that the US government is required to treat the children of all persons subject to the US jurisdiction as US Citizens, then I'd expect that the large majority of the children of consulate staff would be US Citizens, which seems to be obviously not the intent of the text.

My understanding is the children of lower ranked diplomatic personnel are covered. Their children do get birthright citizenship. Here is a CIS article from 2024 complaining about the practice:

The differences between OFM’s blue list and white list are rooted in international practices and law, codified in the Vienna conventions on diplomatic and consular protections.

Under the Vienna conventions, “blue-list” diplomats, as direct representatives of their foreign governments, receive the highest privileges and immunities in the host country; in particular, they are shielded from arrest. “White-list” administrative staff and consular officials also enjoy considerable privileges and immunities, but have fewer arrest protections.

So, when it comes to matters of diplomat babies born in our country, State Department applies an expansive—and unjustified—interpretation of the 14th Amendment’s jus soli citizenship clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Thus, according to the State Department, blue-list babies, born in the U.S. to parents with greater privilege and immunities are not “subject to the jurisdiction,” of this country and therefore not automatically American citizens. But somehow white-list offspring, with comparatively less arrest protection, are “subject to the jurisdiction” and the babies are entitled to a U.S. passport.

Maybe it shouldn't work that way, the article I linked certainly argues in that direction, but it seems current practice is otherwise.

Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?

You can't, under customary international law, prosecute lawful combatants (i.e. enemy soldiers who have a chain of command, wear uniforms etc.) for the normal crimes (murder, arson, unlicensed driving etc.) that they commit in the course of invading your country. I'm not aware of this being documented in any treaty, but it is a very old rule, and it is a background assumption of things like the protection for PoWs in the Geneva Conventions.

Hence invading armies are not subject to the jurisdiction.

So the children of (non-citizen) spies get citizenship?

(Maybe they do, IDK -- the Rosenbergs were Americans, and I don't know of any other famous examples)

Most foreign spies operate under diplomatic cover - rule 1 of Cold War era intrigue is that the Soviet military attache is a spy. So they get expelled rather than prosecuted if caught, and their children don't get citizenship as children of diplomats.

I was thinking of sleeper agents -- these are a thing, right?

The children of the Russian illegals who were caught in 2010 maintain their citizenship. As far as I know, no Soviet illegals in the US were ever caught.

Why would they not (unless they pose as diplomatic staff)?

Most effective spies would enter the US with the approval of the US government (given under false pretense).

If the government can retroactively declare you illegal because you cheated with your immigration paperwork, and this also makes your kids born in the US non-citizens per Trump (and thus illegals in turn), then that would immediately call into question the US citizenship of a lot of people.

I guess expatriating people who only got their citizenship as a means to better spy on you seems reasonable, but denying their kids the right to US citizenship would create a lot more headaches than it solves.

If the government can retroactively declare you illegal because you cheated with your immigration paperwork

Well they can certainly do that:

https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-1

https://www.ice.gov/news/releases/us-citizenship-revoked-bulgarian-man-marriage-fraud-scheme

https://fam.state.gov/fam/07fam/07fam1200apD.html

that would immediately call into question the US citizenship of a lot of people.

I think that's the point!

What I was getting at with the spies (vs the soldiers) is that they do get tried and jailed for whatever crimes they commit in a more-or-less normal way -- so they are 'subject to the jurisdiction' in that sense -- but it would seem kind of weird to create more potential spies who actually are citizens this way.

I'm unaware of any real life examples of this, but it seems like the sort of thing that must have happened at some point?

So if some pre-state people, like native americans from outside US territory, came in for a raid, that would not be an "invasion" and children they have on the way would be citizens?

And what about the not-normal crimes? Do others with a partial immunity, such as government officals, also not count as under US jurisdiction?

I would argue that this would simply make the invaders war criminals which can be prosecuted under military law.

However, if the US decided to prosecute them under peacetime law (e.g. because the "invasion" is just a few drunk Canadians which were easily rounded up by the sheriff), then I would argue that birthrate citizenship would also apply.

IMO, not a lawyer or an expert:

From a textualist, or originalist, or stare decisis perspective, birthright citizenship does apply to children of undocumented immigrants born in the United States. Someone on twitter had a good zinger - if the child was being abused by their illegal immigrant parents, would the courts do anything about that? Well, they would. And, since they would, the children are 'subject to the jurisdiction' of the United States. Exceptions to the "subject to the jurisdiction" clause are things like diplomatic immunity - where, in fact, the court wouldn't exercise jurisdiction over the child. More generally, even if you bought the arguments that the clause somehow excluded the parents, nothing would transfer that status to the children. (This is my speculation, not copying from people who would know better, so more likely to be wrong) - In addition to that, illegal immigrants are regularly charged with crimes under state and federal law. Which, I would think, means they are 'subject to the jurisdiction'? The United States is not, in fact, currently treating them like you suggest we might treat an enemy army. We could, in theory, but we aren't.

However, on issues of sufficient importance, the Supreme Court sometimes ... changes its mind. Or, uh, realizes past precedent was wrongly decided, purely by neutral analysis of the law. This is good. It's good that an independent body of smart elites who effectively choose themselves and genuinely care about the law has some amount of check on democracy and procedure. It's good (or at least, I think it's good, and most people like the results) that the commerce clause allows the federal government to regulate more, as technology and the economy grew in scale and complexity. If birthright citizenship really is that bad, if it's strategically important to the country's future that it be overturned, the weight of literal meaning and precedent maybe shouldn't bind us. And of course, as is tradition everyone even adjacent to the legal field will have to pretend this is really a debate about what people in the 1800s thought 'jurisdiction' meant. You don't have to though.

If birthright citizenship really is that bad, if it's strategically important to the country's future that it be overturned, the weight of literal meaning and precedent maybe shouldn't bind us.

I am generally against this, in particular with amendments. For example, if the 2nd amendment was universally bad (because it specifically authorized private ownership of nukes or something), the correct move would be for Congress to repeal it -- which would happen if it was recognized as such. The SCOTUS squinting their eyes and pronouncing that clearly it just says that states should have national guards is not the way to go.

The most controversial decision the current SCOTUS made was repealing Roe vs Wade, which had been exactly such a "we would very much like the text to say it, so we will just pretend it does" decision. I am somewhat hopeful that Dobbs was made out of a genuine disgust at Roe distorting what the text said to legislate from the bench, and not out of a willingness to interpret the constitution however Trump wants it interpreted.

if the child was being abused by their illegal immigrant parents, would the courts do anything about that?

...

In addition to that, illegal immigrants are regularly charged with crimes under state and federal law. Which, I would think, means they are 'subject to the jurisdiction'?

The question has never been solely about the ability to arrest someone (or to "do anything about that"). They were able to arrest John Elk when he was on non-tribal US land.

This is not to say that the correct answer is the other way, either. It is only to say that it is abundantly clear that things like "can you arrest a person" are not the sole determinant. The case law is extremely clear that what they called "political allegiance" has something to do with it. It's super messy once you get into that, but the fact is, one has to get into that if they want to take the case history remotely seriously.

Someone on twitter had a good zinger - if the child was being abused by their illegal immigrant parents, would the courts do anything about that? Well, they would. And, since they would, the children are 'subject to the jurisdiction' of the United States.

Of course, we also "do something" about invaders. We also prosecute animal cruelty, that doesnt mean the animals are subject to our jurisdiction. And besides, all sorts of strange things can happen when crimes are downstream of other crimes.

Like, the entire problem here is that immigration restrictions have created a novel situation not anticipated by the original legislators. Something about this is going to be weird, no matter how you resolve it. So you cant have the One Zinger to rule them all.

More generally, even if you bought the arguments that the clause somehow excluded the parents, nothing would transfer that status to the children.

Youre introducing a new variable here without saying how its set. Thats not particularly an argument for anything - "You cant definitely disprove X therefore its true" doesnt work. You still need to explain that data with that new hypothesis - so, how is the childrens status actually determined, such that the invasion exception holds?

And of course, as is tradition everyone even adjacent to the legal field will have to pretend this is really a debate about what people in the 1800s thought 'jurisdiction' meant. You don't have to though.

Im well aware. I write this because I think its valuable to show people what the autismo mode actually looks like.

I disagree. From a textualist perspective it clearly does. From a true originalist perspective it is clear that the people who wrote the 14th amendment could not possibly imagine an America in which Europeans became a minority. Indeed debates at the time show they didn’t even think it a realistic possibility (as with the twitter link you post below). The originalist interpretation must flow from that to the obvious conclusion that they wouldn’t have supported large scale third world mass immigration today. When they argued in favor of the amendment, they did so with the implicit and often explicit assumption that mass immigration of the type we’ve now seen would never happen. Now it has, so the foundation has shifted, and everything else must shift with it in accordance with this original, implicit objection.

(By the way, I think the same approach is a perfectly viable way of arguing against certain expansive 20th century interpretations of the first and second amendments).

I found discussion of this on a site about the 14th amendment. It links to a page from the Congressional Record, which seems to match a similar page in wayback from the Library of Congress. It records Sen. Jacob M. Howard (MI) as saying:

Mr. HOWARD: I now move to take up House joint resolution No. 127.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

(Emphasis as per www.14thamendment.us.)

I am not a constitutional scholar, but this seems fairly straightforward to me. What am I missing?

What you're missing is that you found that via a conservative source that filtered the evidence to arguments that sound conservative! Here's a rebuttal from a twitter nazi who happens to be intellectually honest in this case: https://x.com/HellenicVibes/status/1882234654310453753

And there are, iirc, other sources from the time that lean in the same direction

That's some great context, thank you.

quite sensible that someone refused entry is also refused jurisdiction

Well we know this isn't true because illegal immigrants are still often prosecuted for other non-immigration crimes in ordinary American courts. POWs are subject to a distinct legal regime, and are in that sense at the very least not fully subject to the same jurisdiction as ordinary persons in the United States. Think of when Lincoln reclassified confederate sailors from criminal pirates to POWs - they were no longer tried and sentenced in US civilian courts, because in some very important sense they were not subject to the jurisdiction of civilian American law insofar as they were acting as part of an opposing navy - and not even one that Lincoln considered the navy of a legitimate foreign state! If an illegal immigrant started attempting to capture ships in US waters, they would very much be prosecuted for piracy.

Well we know this isn't true because illegal immigrants are still often prosecuted for other non-immigration crimes in ordinary courts.

Same was true for Indians they still were not covered by the 14th Amendment.

Being a subject of a state is different from being subject to its laws. The purpose of the 14th was to make it clear that former slaves were citizens. In this context "subject to the jurisdiction thereof" means something more like "a subject of the government thereof", in the same way one might be a subject of one's King. It expresses a subject-sovereign relationship.

Jurisdiction is a word, though. It means - from merrian-webster - "the power, right, or authority to interpret and apply the law; a matter that falls within the court's jurisdiction". From wiki - "the legal term for the legal authority granted to a legal entity to enact justice". Where did you get the idea this meant more like "subject of the government", when they picked a term that specifically refers to being subject to its laws?

And what concrete test can we apply to identify such subjects, which would tell us whether and which immigrants are subjects?

The 14th just says you can't have people who are subjects but not citizens. If you want to make someone a subject then they're a citizen.

A concrete test sounds like the kind of thing for which a law is required. We have some of those, describing the process through which a non-citizen can become naturalized as a citizen. It seems obvious to me that an immigrant, legal or otherwise, is not a subject of the U.S. until they are granted that status through the law. But this is the whole debate. To other people it will seem obvious that someone is a subject unless the law explicitly says otherwise.

The way people immigrate has changed over the last two hundred years, and the 14th Amendment wasn't written to disambiguate modern questions. Congress could answer them if it dared. In the absence of legislation, it seems reasonable for the President to direct the government using his interpretation of the amendment.

Can a law limit the constitution? It seems like if the congress wishes to act, they need to pass a constitutional amendment specifically to supersede the 14th.

I'm not well-versed in the legal aspects, but I'm skeptical that congress can pass laws that effectively tell the courts how the constitution should be interpreted. For example, I don't think the congress can just pass a law clarifying the second amendment should be read as the people can only bear arms as members of a well-regulated militia. Like-wise, I don't think the courts would like it very much if congress passes a law clarifying "subject to the jurisdiction thereof" means "a subject of United States" and then go on defining what that is.

Can a law limit the constitution?

Separating is from ought, I think it clearly can. Libel laws inform us of where the limits on speech are. Arms rights are restricted in many ways. Governments routinely subject people to searches without warrants (whether they're reasonable is disputed, of course).

I don't even think that's unreasonable - I am under the impression that something as broad and simple as "freedom of speech" is not intended to be so literal as to mean that there isn't any speech, ever that can be abrogated by the government. Maximal literalism would suggest that even a simple noise ordinance is unconstitutional.

Put another way, I think of the Constitution as a set of articulated principles that must be upheld, but statute as working to define how those principles work in practice. When the two collide, someone must make a judgment on the matter. As cynical as I can be about law and judges, I don't actually know of a better way to handle this.

I think you can define terms. The idea of who is “subject to the jurisdiction” of the state is at least somewhat ambiguous. And as such saying that if you would be prosecuted by civil courts if you broke the law, for example, as a prerequisite for being considered a subject of the USA seems reasonable as a law.

You and @Gillitrut and whoever else can go on with comparisons, analogies, and philosophical lucrubations involving the meaning of "under the jurisdiction thereof", but a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary. When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list. The opinion makes it clear that the goal of the amendment was to confirm that freed slaves were citizens. Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing: Diplomats and invading armies were already excepted under common law, and uncivilized Indians were exempted based on their peculiar status in the United States.

This wouldn't be so infuriating if conservatives hadn't spent the past several decades advocating for the kind of minimalist judicial standards that we see in Wong Kim Ark. There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules. The fact that we've since restricted immigration to the point that there are 500 different kinds of visas and some aliens who can travel without visas and a whole underclass of illegals below that doesn't change what the 14th Amendment says. It's the same logic as in Bruen, just because the world has changed doesn't mean we change the meaning of the law along with it. And that argument is much stronger here; states had been restricting firearms since the 1800s, but our definition of a natural born citizen has remained consistent until this past month.

For what very little it is worth, especially coming from an unqualified outsider, I agree with you here. It really does seem very straightforward, and the counterarguments appear a lot like motivated reasoning.

Which isn't to say that this law is good or that it should remain unchanged.

I think it seems that way to you because youre not an autistically-literal person by disposition. If you think "I know it when I see it" is a workable legal standard for constitutional rights, then the status quo is fine.

youre not an autistically-literal person by disposition

First time I have that said about me; usually it's the opposite. The problem may be that I'm not a native speaker and especially not fluent in legalese.

Well, weve had normie-ish conservatives before, and you described yourself as a low-openness rural dweller. I dont think my argument takes a lot of language. Its basically: How do you legally distinguish between an invasion and illegal immigration? Theres a continuum there, and some cases relatively far down that continuum, like primitive raiding, would be considered an invasion. See my discussion with Gillitrut for some hammering-out. Obviously today, these seem like distinct things, and saying illegal immigration is like an invasion is a controversial political point, but in a time before any immigration was illegal, is it really so implausible that they would address invasions in a way that includes that?

a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary.

It really, really doesn't.

When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list.

Let's take a look at the text. The Court actually helpfully asks whether there are other exceptions. They cite The Schooner Exchange v. M’Faddon:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

Yes, there are indicia in the opinion that go the other way, too. But it's definitely a not clear and complete bright line. What was "the implied license under which [illegal immigrants] enter"? Some see also. Yes, there is an intense debate, and the Court may now foreclose it, but it is definitely not just a trivial bright line rule that obviously and conclusively follows from Wong Kim Ark, with absolutely no possibility for any other exceptions.

The articles you linked rest on the presumption that the jurisdiction clause is a stand-in for Common Law exceptions, and that any exception that would apply in the common law would apply for the purposes of the amendment. Hence, people looking for an out tend to get lost in the weeds of the Common Law and get hung up on the justifications for the exceptions and try to apply them to illegal immigrants and other undesirables. That's not what the case says; the long discourse on the Common Law is used for the purpose of explaining why the exemptions exist, and nothing in the opinion suggests that it is to be used for the basis of coming up with additional exceptions. The court is clear:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

The authors tacitly admit this when they say they can't find a common law justification for the exclusion of Indians. That's because the clause doesn't preserve every conceivable common law exception; it preserves the exceptions that were recognized at the time of the amendment's adoption, most of which happen to derive from the common law but one of which doesn't. In any event, no such exception actually exists under the common law. Modern immigration law is a creature of statute with only limited corollary in the common law. What people asking to add an exception are asking is to pretend that a statute from 1965 was part of the common law and continue the analysis of the 14th Amendment using common law principles. This is absurd; the concept of an illegal immigrant in the modern sense simply didn't exist at common law. The court goes on to say:

The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions.

This concept seems obvious, but it's forgotten completely when people are arguing about this. If the exception didn't exist at the time the amendment was adopted, we can't statutorily write it in later. If the amendment, at the time it was adopted, includes aliens, congress can't go back years later and create a new class of "illegal" aliens who aren't covered, any more than they can write in any other exemptions. Allowing them to do so would allow them to gut the amendment entirely. To summarize:

  1. The clause isn't defined by common law, but by the exceptions that were recognized in the United States at the time of the amendment's adoption, regardless of whether they have any basis in common law.

  2. Even if the clause were defined by all the common law exceptions, "illegal immigrant" isn't a recognized exception.

  3. Congress doesn't have the power to create new exemptions by redefining terms.

If the amendment, at the time it was adopted, includes aliens, congress can't go back years later and create a new class of "illegal" aliens who aren't covered, any more than they can write in any other exemptions.

Right here is the great big "if". Clearly, at the time it was adopted, political allegiance had something to do with it. At the very least, something about the "implied license under which they enter" had something to do with it. (All of this is clearly expressed by the Court prior to 1965.) Wong Kim Ark did not address the question of the original meaning of the amendment concerning anyone who is in the situation of a modern day illegal immigrant. I, for one, am excited to find out from the Court whether or not the amendment, at the time it was written, considering those factors that are expressly relevant, does or does not include illegal immigrants. I don't know! I don't think anyone knows! I think it's a huge open question! ...and I think, given the nature of this most recent comment, you've now come off the idea that it is just trivial, open-and-shut, by following Wong Kim Ark. It's not. It's messy. It's very very messy.

Well, no, it's no "if"; the opinion explicitly states that amendment covers aliens. "Implied license" is only mentioned as the historical context for why the exception exists, not as a test for creating new exceptions. The reason the opinion doesn't discuss the amendment as it would apply to anyone in the situation of a modern-day illegal immigrant is because such a situation didn't exist at the time the amendment was adopted. These older opinions aren't structured as well as the newer ones, which is why I said that they require a close reading to tease out exactly what the court is doing, but it's pretty straightforward: It cites a rule (those born in US territory are citizens) and the exceptions (diplomats, invading armies, Indians, people born on ships). If Wong Kim Ark is still good law, that's as far as the analysis goes, since the court clearly defined what the exceptions are. What your suggesting is that congress can create a new class of persons that didn't exist at the time of the amendment's adoption, apply common law principles to argue that there would have been an exception if the class actually existed at the time of adoption, and use that as justification to pencil in a new exception that didn't exist under common law and wasn't recognized by the Wonk Kim Ark court. There might be an argument for this if the court hadn't ruled, but the court did rule, and you can't do this without overturning 130-year-old precedent.

To give an analogy I'll use a situation that comes up in my own professional life. I handle a lot of product liability cases involving occupational exposure to hazardous chemicals. The exposure to these chemicals took place many decades before the plaintiffs developed their disease. As you would imagine, the plaintiffs in these cases have to prove that they were actually present at the facilities where they are alleging exposure. Ideally, the plaintiff will testify to where he worked, but sometimes the plaintiff is deceased. In those cases, we find coworkers who can testify to where the plaintiff worked and the chemicals he may have been exposed to. But what happens if you can't find any coworkers? You can use employment records, but if the guy was in a union or otherwise visited jobsites where he wasn't employed by the owner, there's probably not going to be anything useful.

Some attorneys got the idea to use spouses, children, etc. to testify to where the plaintiff worked. The problem is that this is hearsay that doesn't fit into any exception. I was involved in a heated courtroom argument last year where plaintiff's attorney was arguing that the common law reasoning behind the hearsay rules was reliability—hearsay is presumed to be unreliable, but we make exceptions for cases when we think it is reliable. The guy in question worked as a union boilermaker for three years at a power plant while it was under construction. No one on the defense side seriously believed that the husband (along with several coworkers the couple was friends with) spent three years lying to the wife about where the husband was working. But the law doesn't allow the judge to just create a hearsay exception because he thinks the testimony is reliable.

The parallels are unmistakable: Hearsay rules developed out of common law principles. At some point, the state legislature codified these into rules of evidence. A situation arose (people developing occupational diseases 50 years after exposure) that wasn't contemplated by the rules. Someone tries to argue that the rules shouldn't apply to this case because the evidence they want to admit is in accordance with common law principles. But you can't just shoehorn exceptions in because you can theoretically justify their existence.

The reason the opinion doesn't discuss the amendment as it would apply to anyone in the situation of a modern-day illegal immigrant is because such a situation didn't exist at the time the amendment was adopted.

Precisely. However, the concepts involved in the analysis existed. It's like in the oral argument in the violent video games case, where the question was basically posed to Scalia (I can't remember if it was another justice or what), some version of, "Do you want to know what James Madison thought about video games?" Scalia's response: "No. I want to know what James Madison thought about violence!" We can still consider the concepts of political allegiance/implied license/etc., as they apply to illegal immigrants today, even though they didn't have illegal immigrants then.

There might be an argument for this if the court hadn't ruled, but the court did rule

But they did not rule concerning how those principles come into play for anyone in the situation of modern day illegal immigrants. It just wasn't a question! You're heavily over-reading. I'm reminded of this old old exchange, where someone was heavily over-reading an opinion that simply did not consider an issue front-and-center, and thus, did not take the opportunity to really address it. That opinion may have still discussed principles which could have applied, but if one wants to be extra boneheaded, they could just imagine that it's implicitly settled. The extra fun part about that one is that we already had an opinion which clarified that, no, we didn't focus on that thing before. But we can still analyse it using the principles involved now that it's front-and-center.

you can't do this without overturning 130-year-old precedent.

In no way does one have to overturn the holding of Wong Kim Ark (that is, birthright citizenship for a resident alien) to say, "The Court in Wong Kim Ark acknowledged that the governing principles involve political allegiance and implied licenses, and since there was no such thing as a modern day illegal immigrant at the time, of course the Court did not find an exception for a category that they didn't even consider. But they obviously did not foreclose the question that they didn't even consider, and we'll proceed to analyze the current case using the same governing principles." From there, they'll inquire about the original meaning of 14A, including all the messiness of political allegiance/implied license, and we'll see what they come up with.

Let's clarify something directly. Do you reject the claim that the original meaning of 14A included some form of messiness about political allegiance/implied license?

Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing:

Also literally everyone outside of the United States, obviously those were not US citizens. "All persons under US jurisdiction" was a neat way of describing both the citizens-prior-to-the-amendment and the ex-slaves, with a single phrase, as one group.

When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves.

That is a court opinion, which must be justified. If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticims, then lets hear it.

There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules.

This is what Im attempting to do. Where do I equivocate, or balance, or...? As I said, I agree this is not the simplest reading: that would be one which doesnt make the invasion exemption. As is, the legislators have chosen to include their desired exemptions with a concept of "jurisdiction" that was complicated by previous common law practice, and thats going to take some investigation even if you aim to be straightforward. Again, if you consider these intended exemptions relevant, which I do.

Also, I do wonder why everyone so far has ignored my last paragraph. I mean, my ultimate conclusion is that all the exemptions are gone - shouldnt this maybe dampen your accusations of partisan activism?

If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticisms, then lets hear it.

To wit:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. . . .

In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification. There's nothing in the opinion that suggests the amendment allows for every conceivable exception under common law. I think people lose the plot after the part that says:

The principles upon which each of those exceptions rests were long ago distinctly stated by this court. . . .

The opinion then goes on to discuss those principles, but at no point does it suggest that those principles can be used to craft exceptions other than those that the court recognizes in opinion. Further on, it closes the door:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes....

That's it; here's the rule, here are the exceptions. It couldn't be any clearer.

In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification.

Interesting. I havent read enough of the legislative debates to say if they meant to enshrine common law generally or a fixed version of it, but I dont think it matters to me. This would catch the guys in this thread who argue about "allegiance" and such, but my argument is about the problems of distinguishing illegal immigration from invasions legally. It sounds like you didnt read the branch with Gillitrut, but it goes into this. I dont need general common law reasoning, because I dont think what Im suggesting is actually a distinct novel exception.

Whatever the legislative debates say doesn't matter at this point, because the exceptions have already been enshrined in law by the Wong Kim Ark decision. I did read the branch you refer to, but I didn't address it because what you guys were arguing was edge cases that, as far as I can tell, don't apply to any known persons. I'm unaware of any extraterritorial raids by natives, let alone whether any of these had children while they were here. Interestingly enough, you actually would need common law reasoning in this case, because the court specifically recognized the exception based on common law, and that's where you'd therefore go to test the bounds of it. That's assuming, of course, that there are no intervening court opinions that have already addressed the issue.

I think this comes down to judicial philosophy then. Stare decisis in the US seems to follow no rule whatsoever in when its used vs ignored, by judges of all camps. As far as Im concerned it exists mostly rethorically.

I think you should have good answers to cases that never happen. The constitution is to some extent a paranoid document, it is meant to make people follow rules even against their will, and when youre "being reasonable about it", you act without an explanation of what youre actually doing. When the weird case actually happens, do you then reverse the thing you already judged, or do something blatantly inconsistent? And if the weird case happened first, then you would have done the right thing? In either case, clearly you were doing the wrong thing in the here and now. To me, this is an integral part of literal interpretation.

Interestingly enough, you actually would need common law reasoning in this case

I think extraterritorial natives dont fall under the natives exception, but if they do, imagine some other nomadic society raiding.

Your "crystal clear" reading of Wong Kim Ark is contradicted by the existence of the Indian Citizenship Act of 1924. Your qualifying of it as "uncivilized Indians" does little, because an illegal immigrant can be part of or a descendant of an American Indian tribe. An Afghani can be part of an uncivilized tribe. As a result, there is little evidence for the "Red Rover Red Rover" rule that is espoused.

Instead, Wong Kim is a nice reversal of "bad cases make bad law." Its a simple case that makes for a simple decision. His parents were legal permanent residents, fully in compliance with the laws of the US to the extent of our knowledge, at the time of his birth. He then lived in the US for 20 years and went on a vacation.

I'm not sure what you're getting at here. Wong Kim Ark interprets the 14th Amendment to read that everyone born in the United States is a citizen, subject to the exceptions that were recognized prior to adoption. Indians owing tribal allegiance were among these exceptions. Furthermore, the amendment doesn't state that these are the only circumstances under which one can become a citizen, it just says that these people are citizens. So if congress wants to extend citizenship to other classes of people, they can do so, and have done so. Otherwise, there would be no naturalization and no citizenship for children of US citizens born abroad.

Many types of people owe tribal allegiance.

I'd read "Subject to the Jurisdiction" to mean that the person - regardless of where they happen to be living in the world at that particular instant - is morally obliged to follow the US's rules.

I'm an American so, regardless of where I live in the world, I have to file US taxes, follow some US laws, and if there was a war, I'd be subject to a draft.

Contrast this with my relationship to the English. The English Monarch could - in theory - send me a letter informing me that I'm in violation of his laws regarding proper speech and respect for the crown. The correct response would be to laugh and frame the paper; I have no moral obligation to follow English law because I'm not currently in England and - more importantly - am not a subject of the English Monarch.

It's true that the English King could - in theory - exercise some authority over me. The SAS is pretty competent, so I'm sure they could (if they wanted) find me in the US, put a bag over my head, and drag me to England. Or the King's prosecutors could grab me when I passed through Heathrow Airport on my way to some third country. But, that kind of action feels less morally legitimate than the King seeking to control one of his proper subjects.

It's also true that if I visited England on vacation, I'd become subject to British law on a temporary basis; I'd get arrested if I started stealing things or vandalizing pubs. But that authority only lasts as long as I'm on British soil. I wouldn't become a Royal Subject just because I took a vacation.

How does your interpretation jive with Wong Kim Ark? His parents were Chinese subjects, so if they were living elsewhere in the world, they wouldn't be morally obliged to follow the US's rules. If the US has a draft, they wouldn't have been called, but if the Chinese Emperor calls on their service, they're obliged to follow. Do you think the court decision was wrong, in this case? (totally an option by the way)

I'd lean towards "wrongly decided" but might do a cowardly dodge and say that in 1897 the difference between temporary and permanent immigration statuses was less well defined and that modern decisions should rely on nuances that probably didn't exist in 1897.

Using the 2024 system, I'd say that someone is subject to the jurisdiction of the US in-as-far as they've assented to giving the US a worldwide interest in their behavior. This is the case with Green Card holders, who have to pay US taxes wherever they live. But it isn't the case with more temporary visas.

I think a more straightforward distinction has to do with the relation between the non-citizen and the state. In the case of an invading army the soldiers effecting the invasion and occupation are acting in an official capacity as agents of a foreign government. I think that makes those soldiers more like ambassadors (in relation, though not purpose) than illegal immigrants more generally.

I'll also note that Trump's EO goes beyond illegal immigrants to include those lawfully present but without permanent resident status. So any theory of jurisdictional defect premised on illegal entry is still going to conclude a substantial part of Trump's order is unconstitutional, without more.

I think that makes those soldiers more like ambassadors (in relation, though not purpose)

I dont think so. With the ambassadors, the US agrees to exchange jurisdiction over them with the other state. This requires a recognition of that state and a defined relationship, which an invasion does not. Are raiding native americans "acting in an official capacity"? Or mexican cartells, or CHAZ? The US may also, even universal jurisdiction aside, prosecute soldiers for crimes unrelated to the war effort. And note again the similar treatment of soldiers and illegal immigrants.

So any theory of jurisdictional defect premised on illegal entry is still going to conclude a substantial part of Trump's order is unconstitutional

I understand that its a long post but I literally said so.

Or mexican cartells, or CHAZ?

These aren't analogous because the US doesn't recognise them as sovereign states - they have no state for which to act in an official capacity, and are therefore just regular criminals in a way invading soldiers are not.

My impression from Wong Kim Ark is the Native American exemption is distinct from the invading army distinction, perhaps due to the weird way Native American tribes were considered sovereign while inside the territorial boundaries of the United States. As to Mexican cartels or CHAZ, I do not think there is plausibly any foreign power which they are acting as agents of so children of cartel members or CHAZ enforcers would be subject to the jurisdiction of the United States and have birthright citizenship thereby.

The US may also, even universal jurisdiction aside, prosecute soldiers for crimes unrelated to the war effort.

I think this is also consistent with US law and Supreme Court precedent, without negating the kind of relationship these individuals have. In Ex parte Young the Supreme Court ruled that sovereign immunity did not protect United States government officials from suits alleging they violated the constitution. The reasoning is that any unconstiutional action cannot be the action of the United States government (since the constitution would forbid that action) and so they cannot be acting as the government and enjoy the protection of that capacity, though they can in other capacities. By analogy when those foreign soldiers engage in actions unrelated to the orders of their sovereign they are acting in a capacity that does not enjoy concomitant protections from the laws of the United States, without negating the existence of that general relationship.

I understand that its a long post but I literally said so.

I did miss that sentence in your post. My apologies.

the Native American exemption is distinct from the invading army distinction

Yeah, maybe that was a bad example, I didnt mean to interact with that. Im thinking of the kind of endemic raiding common in pre-state societies. I picked the natives because that would be something the US did in fact experience around the time of passing the ammendment - the US did not always claim all its current territory, and natives from outside that wouldnt fall under the natives exception.

As to Mexican cartels or CHAZ, I do not think there is plausibly any foreign power which they are acting as agents of

The question is, are they a foreign power, themselves (and the natives as per above)? In diplomacy, its well defined who is a state; in war not necessarily.

I think this is also consistent with US law and Supreme Court precedent, without negating the kind of relationship these individuals have.

But the way jurisdiction is used in the 14th, it has to apply to the person as a whole. The sovereign immunity of government officials is not a general relationship they have with the state, its something that applies when they wear their office hat. This is true of the soldiers as well; you cant just say "Well now that I need a binary result, Ill pick which hat to count as the "general relationship".".

Also, there were no women soldiers at the time. They would not be acting in any kind of official capacity, but nonetheless fall under the invasion exception, because it is moot otherwise.

The question is, are they a foreign power, themselves (and the natives as per above)? In diplomacy, its well defined who is a state; in war not necessarily.

I think there's an obvious contemporary analogy with the 14th amendment: The Confederate States of America. Were those children born to confederates during the Civil War considered to be American citizens? As best I can find the answer to that is "yes." Children born to confederates were considered US citizens the same as any children born in the Union. This is pre-14th amendment but I doubt the authors of the amendment would have understood it to exclude the children of confederates. It seems to me it would be hard to argue CHAZ or Mexican cartels constitute a sufficiently foreign jurisdiction when the CSA was not.

But the way jurisdiction is used in the 14th, it has to apply to the person as a whole. The sovereign immunity of government officials is not a general relationship they have with the state, its something that applies when they wear their office hat. This is true of the soldiers as well; you cant just say "Well now that I need a binary result, Ill pick which hat to count as the "general relationship".".

I think this bolsters rather than undermines my point. In the case of the soldier or invading army there is arguably a sphere of action in which US courts do not have jurisdiction to prosecute them for things which may otherwise be crimes. That being those actions undertaken as part of prosecuting the way pursuant to their governments directives. There is no similar sphere for illegal immigrants.

Also, there were no women soldiers at the time. They would not be acting in any kind of official capacity, but nonetheless fall under the invasion exception, because it is moot otherwise.

I do not think it is too much of a stretch to extend this aegis of foreign jurisdiction to foreign citizens providing logistical support ala camp followers.

I agree that CHAZ is analogous to the CSA. In both cases, most of the people involved would have been US citizens anyway, and even for the remaining ones, you can hardly deny entry to someone who was there all along. I would also drop the cartel example because it might include all sorts of legally different things. So, what about the raid from extra-territorial natives?

In the case of the soldier or invading army there is arguably a sphere of action in which US courts do not have jurisdiction to prosecute them for things which may otherwise be crimes.

The way I think of it is that the US does have jurisdiction, but the criminal is the commanding goverment rather than him. In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".

I do not think it is too much of a stretch to extend this aegis of foreign jurisdiction to foreign citizens providing logistical support ala camp followers.

Im not sure how often following families were net helpful vs something the command couldnt take away from soldiers, and dont think the outcome should depend on that. And what if some enemy civilians attempt to settle conquered land?

In general, the tenor of this conversation is you attempting to draw a more complex and less obvious distinction, that will accommodate the invasion exception without excepting illegal immigrants. You havent found counterexamples to my relatively simple theory that accommodates it. This very much looks like you bending towards a desired conclusion.

So, what about the raid from extra-territorial natives?

What would it mean to be an "extra-territorial native" that was not covered under the exemption for Native Americans? What other group is being imagined here?

The way I think of it is that the US does have jurisdiction, but the criminal is the commanding goverment rather than him. In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".

I don't understand why they wouldn't both be criminals. I think pretty ordinarily if person X commits a crime on person Y's orders they are both criminals. I'm not sure what logic makes the foreign government a criminal and not the individual who committed the acts constituting the crime.

In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".

I think the people that literally constitute the sovereign whose jurisdiction we are discussing are under the jurisdiction of the sovereign they constitute.

Im not sure how often following families were net helpful vs something the command couldnt take away from soldiers, and dont think the outcome should depend on that. And what if some enemy civilians attempt to settle conquered land?

As you note above, invading armies likely has some meaning beyond the literal soldiers since children born to soldiers must be pretty uncommon. That comes directly out of Ark. I'm comfortable thinking of informal logistical support as being part of the "army" in that sense. I think enemy civilians would fall under the jurisdiction of the government being occupied.

In general, the tenor of this conversation is you attempting to draw a more complex and less obvious distinction, that will accommodate the invasion exception without excepting illegal immigrants. You havent found counterexamples to my relatively simple theory that accommodates it. This very much looks like you bending towards a desired conclusion.

I disagree. Invading armies, organized under the auspices of some government, seem to me quite different than a group of unrelated people not organized with each other or by any government. In relation to each other, to the country they are coming from, to the country they are going to. Treating them the same does not make any sense. In what sense are illegal immigrants an "army?"

What other group is being imagined here?

As I said, natives living on land not even claimed by the US. Or maybe natives living on canadian land and only coming over for the raid. Or maybe the mongol hordes coming across the Bering straight, plundering a few US towns and then going back home, but with a baby born along the way, if you just cant process anything involving natives. I pick these examples because Im quite sure they would have considered that an exempted invasion at the time.

I don't understand why they wouldn't both be criminals.

Practically speaking, we treat organised crime like this because we expect that we can dominate them completely, and with the opposing army we dont. The rule of condemning all is powerful but brittle, and must be used carefully. Note that CSA soldiers were criminals rather than foreign soldiers to the US, but were largely excused. But this is getting very substantive, in a branch that I dont strictly need. Better to stop it here.

I think the people that literally constitute the sovereign whose jurisdiction we are discussing are under the jurisdiction of the sovereign they constitute.

So do I. Yet you have made your case on a principle implying they arent. You cant shrug off weird implication just because they would be weird.

I think enemy civilians would fall under the jurisdiction of the government being occupied.

As in, they would get the citizenship? I think people at the time would disagree.

I disagree.

No you dont. What youre describing is not a counterexample, but an attack on plausibility. What I said is that the simple principle of government doesnt want you to come in = refusing jurisdiction agrees with all cases known from before the time of immigration restrictions. Im also not saying the immigrant is an army - I dont see the illegal immigration exemption as a subtype of the invasion exception - I think the plausible justifications for the invasion exception also justify that one.

Invading armies, organized under the auspices of some government, seem to me quite different than a group of unrelated people not organized with each other or by any government.

And I argue, both in OP and here, that this is simply asserting a distinction that you dont actually have a good way to draw, as evidenced by the difficulty in detail we have explored in this thread.

John Eastman goes into the the types of jurisdiction and birthright citizenship in this interview: https://rumble.com/v6me54x-sidebar-with-john-eastman-birthright-citizenship-executive-order-lawfare-an.html?start=936

Unfortunately there's no transcript I'm aware of.

I won't vouch for the accuracy; Grok produced this transcript

[15:36] David: Alright, let’s shift gears a little bit here. One of the big things that came out of the first day of the Trump administration was the executive order on birthright citizenship. This has been a hot topic for a long time, especially in conservative circles. John, you’ve written extensively about this. Can you break down what this executive order does and why you think it’s legally sound?

John: Sure, David. First off, let me say this is something we’ve been pushing for years—decades, really—at the Claremont Institute and elsewhere. The executive order Trump signed on day one basically says that children born in the U.S. to parents who are here illegally, or even on temporary visas, aren’t automatically citizens. It’s directing federal agencies to stop issuing citizenship documents—like passports or Social Security numbers—to those kids unless at least one parent is a citizen or a lawful permanent resident.
Now, the legal basis here hinges on the 14th Amendment, specifically the Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” The key phrase is “subject to the jurisdiction thereof.” For over a century, the courts—and most scholars—have read that broadly, saying if you’re born here, you’re a citizen, period. Except for, you know, diplomats’ kids or invading armies. But that’s a misreading of the original intent.
When the 14th Amendment was drafted in 1866, the framers—like Senator Jacob Howard—made it clear they meant it to apply to people who owe full allegiance to the United States. That’s freed slaves, citizens, people permanently domiciled here. Not foreigners who are just passing through or breaking the law to get here. Howard said explicitly it doesn’t include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” The debate in Congress backs this up— they weren’t trying to hand out citizenship to every kid born on U.S. soil no matter the circumstances.

Viva: Wait, John, hold on a sec. The counterargument I always hear is that Wong Kim Ark case from 1898 settled this. Guy born in San Francisco to Chinese immigrants—legal ones, sure—but the Supreme Court said he’s a citizen. Doesn’t that blow your theory out of the water?

John: Not at all, Viva. Wong Kim Ark is the big cudgel everyone swings, but it’s narrower than people think. Wong’s parents were lawful residents—here legally, running a business, fully subject to U.S. jurisdiction in the political sense. The court said he’s a citizen because his parents weren’t diplomats or some hostile force; they were part of the community. But the case didn’t address illegal immigrants or temporary visitors. The justices even said the phrase “subject to the jurisdiction” means full allegiance—owing no allegiance to another country.
Illegal immigrants, by definition, aren’t fully subject to our jurisdiction—they’re subject to deportation, not the draft, for example. They owe allegiance to their home countries. Same with tourists or visa holders. Wong Kim Ark doesn’t cover them, and the Supreme Court’s never ruled on that specific question. This executive order is teeing it up for them to finally decide.

David: So you’re saying this is a test case, basically? Trump’s throwing it out there to force the courts to weigh in?

John: Exactly. Look, the left’s already suing—18 states filed challenges within days. They’re screaming it’s unconstitutional, but that’s the point: let’s get it to the Supreme Court. The historical record’s on our side. Senator Lyman Trumbull, another key framer, said “subject to the jurisdiction” means “not owing allegiance to anybody else.” That’s not some fringe view—Ed Meese, Reagan’s AG, signed onto a brief I wrote years ago saying the same thing. If the court looks at the original meaning, not the lazy gloss we’ve had since the 20th century, Trump’s order holds up.

Viva: Alright, but practically speaking, John—what’s this mean for people? Like, babies born tomorrow to undocumented parents. They just… don’t get a birth certificate?

John: Not quite. They’ll still get a birth certificate—that’s a state thing, recording the birth. But federal agencies won’t issue citizenship papers. No Social Security number, no passport. States might try to fight it, issue their own stuff, but the feds control naturalization under the Constitution. It’ll create chaos short-term, sure—hospitals, parents, bureaucrats scrambling. But that’s the pressure point to get this resolved. Long-term, it’s about ending the magnet of illegal immigration. People won’t trek here to pop out a kid for an anchor baby if it doesn’t work anymore.

David: Fascinating. And you’re not worried about the optics? I mean, it’s a tough sell—denying citizenship to kids born here. Sounds harsh to a lot of folks.

John: Optics are Trump’s problem, not mine. I’m looking at the law and history. The 14th Amendment wasn’t a blank check for anyone to exploit. It’s been twisted into this universal giveaway, and that’s not what it says. If people don’t like it, amend the Constitution—good luck getting two-thirds of Congress and three-fourths of the states. Until then, this order’s a valid interpretation. Let the courts sort it out.

[18:45] Viva: Alright, John, we could go all day on this—fascinating stuff. Let’s pivot to something else…

I read through the original Congressional debates about the ratification of the amendment and found them pretty interesting.

A key line is this one by Senator Howard who worked on the langauge of the bill and said:

[This amendment is] simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of person. It settles the great question and removes all doubt as to what persons are or are not citizens of the United States.

Unfortunately, it did not remove all doubt because there is a question of whether there is an implicit "or" between "aliens" and "who belong to the families of ambassadors" or if the ", aliens, " is parenthetical and the 'who belong" is a modifier to foreigners/aliens.

Reading the rest of the debates does not perfectly resolve the issue either. One reason reading the debates does not perfectly resolve the issue is that they simply were not dealing with a problem of temporary visitors trying to gain a foothold in the country by having children. Back then, almost anyone rich enough to be an international tourist would have had no problem becoming a permanent US resident anyways. The wording of the Amendment was designed to unambiguously include freed slaves, but exclude unconquered American Indian tribes. That's why they chose the language they did. They were not thinking about anchor babies. One of the Senators opposed the amendment because it would include Gypsies and Chinese, and the other Senator replied that yes, it would, but that is ok, there are not enough of them to be a big deal. But in the case of the gypsies and Chinese, we are talking about groups that were domiciled in the U.S., and so that does not apply to temporary migrants, so that doesn't really help us.

Reading "subject to the jurisdiction" of the United States as "potentially subject to prosecution in American courts according to American laws" does not make sense, because that is literally everyone in the world. Even diplomats are subject to American law, the U.S. just has a policy of expulsion rather than prosecution for crimes that are not violent felonies.

I think the best way to understand "subject to the jurisdiction of the United States", and the one most consistent with the Congressional debate, is that the person is an American subject. They are loyal to the American government, not a foreign government or sovereign tribal government. In the absence of any current legal definition, here are some to heuristics to judge if someone is an American subject: If they commit a medium severity crime, will they be deported to their home country? If a war came and there was a draft, they would be subject to the U.S. draft and not another country's draft? If they fought for the enemy and caught, they would be hung as a traitor instead of considered to be a prisoner of war to be exchanged? If they were in a third country and got in trouble or lost a passport, they would contact the American consulate, and the American State Department would help him out because the person was "one of theirs."? If they are working abroad, do they still owe an income tax return to the United States government?

If I was rewriting American immigration law, I would have only four categories:

  • Temporary visas (business, tourist, etc.) -- less than 9 months, can be extended only with escalating penalties.
  • Conditional residency visa -- indefinite based on good behavior, paying taxes, and meeting the initial conditions of the visa (eg, meeting some terms of sponsorship)
  • American national - primary loyalty to the U.S., American passport, permanent residency, will not be deported for crimes. But no rights to vote, hold office, or sit on a jury. I would also any conditional resident to pledge loyalty to America and become an American national after 10 years.
  • American citizen. I'd allow an American national to naturalize as a citizen after another 10 years.

The children born in the U.S.A. of American nationals would be citizens automatically. Children born to parents with conditional residency visas I would make citizens automatically if their parents become American nationals, otherwise they have the visa status of their parents.

think the best way to understand "subject to the jurisdiction of the United States", and the one most consistent with the Congressional debate, is that the person is an American subject

From a 'what does the text literally say' perspective, you're ignoring that they picked the word "jurisdiction", which would literally mean "subject to the laws of". From an originalist perspective, you're ignoring that the word was used in law to mean that at the time too! I like this thread: https://x.com/dilanesper/status/1866167064282747388

Reading "subject to the jurisdiction" of the United States as "potentially subject to prosecution in American courts according to American laws" does not make sense, because that is literally everyone in the world. Even diplomats are subject to American law, the U.S. just has a policy of expulsion rather than prosecution for crimes that are not violent felonies.

... what? No, the whole point of that clause was to exclude people like diplomats, and it has been held to do so.

One of the Senators opposed the amendment because it would include Gypsies and Chinese, and the other Senator replied that yes, it would, but that is ok, there are not enough of them to be a big deal. But in the case of the gypsies and Chinese, we are talking about groups that were domiciled in the U.S., and so that does not apply to temporary migrants, so that doesn't really help us.

I'm not sure if one can make a principled distinction between the degree to which gypsies and Chinese in 1866 were domiciled in the US and the degree to which the median illegal immigrant (and especially the median illegal immigrant's anchor baby!) is domiciled in the US now. I would assume most of them are not so affluent that they would maintain property or a rental apartment in their country of origin before they make the trek...? If it's on the level of "family would be available to house them in their country of origin", this surely applies to most Chinese as well, and gypsies, on the other hand, are famously transient.

As I understand it, in the 1860s there wasn't really a concept of an illegal immigrant. A person did not need permission to reside in the United States. So all the gypsies and Chinese who had established residency in the U.S. would be the modern equivalent of either a green card holder or an American national.

It's also usually not appreciated that the language "subject to the jurisdiction" seems to apply to the child, not the parent. I actually think it would be reasonable to rule that if the child is born in the U.S., to alien parents and the alien parents and child immediately move back to their homeland while the child is a minor and the child is a citizen of the homeland, obviously the child is not a U.S. subject and do not get citizenship. However, if the parents illegally move to the United States and bear a child and the child never establishes any connection or loyalty to their homeland, once they reach the age of majority the child should be considered a citizen. This would be consistent with the Wong Kim Ark ruling which is that the child born in America and who is a permanent resident of America and primarily loyally to America is a citizen, even if they technically are claimed as citizen by another country by right of blood.

This would be consistent with the Wong Kim Ark ruling

Wong did have connections and loyalties to his homeland though. He had a Chinese wife and children who were living in China at the time.

It's also usually not appreciated that the language "subject to the jurisdiction" seems to apply to the child, not the parent.

Ive thought about that, but it also seems that whats relevant is the subjection at the time of birth. Because if its not, then what? Constant updates, and your citizenship pops in and out of existence depending on subjection? And at birth it would, barring strange circumstances, be identical to the parents.

connection or loyalty

Both of these are typically passed to the child. That's why you see Mexican flags waving in the US.

Connection can also include language, so I'd simply assert that anyone speaking a foreign language has de facto connection to that foreign nation.

And most illegals intend to settle down here and raise their kids in the USA. What it sounds like Trump can relatively painlessly crack down on is birth tourism.

It's not about their intention. Constitutionally, it would be fine to say that as minors the children obviously are under the same legal jurisdiction of the parents, and so the child should be deported with the parents and would be a citizen of their home country and not an American subject and not a citizen. Only if they slip through the cracks and make it to age of majority without ever establishing themselves as a subject of a foreign country, can I see the case that the child should be then considered an American citizen.

The question, now, is who is subject to jurisdiction.

I would read the whole sentence like this: all persons who are born or naturalized in the United States, and as such subject to the US jurisdiction, are citizens both of the US and a certain state within the US. Or put another way, all people subject to the US jurisdiction are citizens both of the US and of a certain state within the US, regardless of how they became subjects to said jurisdiction (through naturalization or by birth right).

Something else has to decide who are subject to jurisdiction, it's a precondition. Both for naturalization and for birth right pathways. Then, for those who did pass the subject-ness test, this statement claims that they are also considered to be "citizens" of two distinct entities.

So my take would be that the answer to this question is in a different place altogether. This passage is just irrelevant. But I'm not a judge or a layer, and it's the US law, so yeah.

There is a strong preference ton of render any passage irrelevant. You can see this in Heller where the opening clause was heavily debated as surplusage or meaningful.

Irrelevant for the birth-right citizenship debate, I should have clarified that.

It is meaningful, but it's there to address a completely different issue. The debate is about whether the US has anything to do with the babies born on the US soil, but the amendment is about people for whom it's already been decided. It's downstream from the decision.

It does imply that it is possible to get US citizenship by being born in the US (as opposed to going through naturalization process), but not that being born is the only requirement. And that's what the whole debate is about.

Good post. I think on balance the status quo ante belief is correct when looking at the difference between the civil rights act and the eventual 14th. However, I don’t think the status quo argument is unimpeachable and treating it as such reminds me a bit about Obamacare.

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