14th Amendment - "and subject to the jurisdiction thereof"

[CCC]

AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

The issue of illegal aliens and what has been termed "anchor babies" (babies born in the United States of illegal aliens) comes down to how we interpret the 14th Amendment to the U.S. Constitution.

Utimately such an issue is decided by the Supreme Court and the nuances of how the Constitution is interpretated. Section 1 of Amendment 14 has been used to justify citizenship of babies born here of illegal aliens. A key phrase that some people have pointed out to contradict that view is "and subject to the jurisdiction thereof."

So what does this mean and what is the overall intent of the 14th Amendment?

A couple of opinion articles follow...

(snip)
Fourteenth Amendment Debate

Birthright citizenship is based on the Fourteenth Amendment to the U.S. Constitution, which was originally enacted to ensure civil rights for the newly freed slaves after the Civil War. Section 1 of the Fourteenth Amendment states, "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."

A serious and scholarly debate has been on-going for years about whether illegal aliens (and temporary visitors) are, in fact, "subject to the jurisdiction" of the United States. Some scholars insist that the phrase has no real meaning of its own, but rather is essentially another way of saying "born in the United States." They believe the Fourteenth Amendment requires that any child born on U.S. soil be granted U.S. citizenship. Other scholars look to the legal traditions observed by most courts, including the presumption that all words used in a legislation are intended to have meaning (i.e., not simply be restatements) and that, if the meaning of a word or phrase is unclear or ambiguous, the congressional debate over the legislation may indicate the authors' intent. These scholars therefore presume that "subject to the jurisdiction" means something different from "born in the United States," so they have looked to the original Senate debate over the Fourteenth Amendment to determine its meaning. They conclude that the authors of the Fourteenth Amendment did NOT want to grant citizenship to every person who happened to be born on U.S. soil.

The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is "simply declaratory of what I regard as the law of the land already." Sen. Howard said that "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."

Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction requirement: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Johnson's reading of the jurisdiction requirement also is consistent with our naturalization requirements. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.

In light of these and other statements made during the Senate debate over the Fourteenth Amendment, it appears clear that the authors intended only to grant citizenship to persons born here who were also "subject to the jurisdiction" of the United States. They understood that phrase to have the same meaning as the phrase "and not subject to any foreign Power," included in the Civil Rights Act of 1866, which these same Senators had earlier drafted. And by "subject to the jurisdiction," they meant "subject to the jurisdiction of the United States in every sense," and "[n]ot owing allegiance to anybody else."

It would be difficult to argue that illegal aliens and temporary visitors are "not subject to [a] foreign [p]ower" or that they do not "ow[e] allegiance to anybody" but the United States. The Supreme Court, however, has never decided the issue. The closest it has come is a case involving the U.S.-born child of lawful permanent residents in which, of course, it held the child to be a U.S. citizen. In the absence of a ruling by the Supreme Court, it will remain up to Congress to clarify the meaning of the Fourteenth Amendment or to accept the status quo.

http://www.numbersusa.com/interests/...itizenship.htm

Immigration, Part 2: "Subject to the jurisdiction therof"?
Mark Alexander

(snip)
(b)ut does the Constitution authorize birthright citizenship to illegal aliens?

The relevant constitutional clause concerning birthright is found in the 14th Amendment, one of three "reconstruction amendments" proposed after the War Between the States. The 13th Amendment banned slavery, the 14th ensured Due Process and Equal Protection under the law for former slaves and their children, and the 15th banned race-based qualification for voting rights.

Section 1 of the 14th Amendment (as proposed in 1866 and ratified in 1868) reads, "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." It explicitly referred to children born to U.S. citizens and those born to aliens lawfully in the U.S.

Why did the amendment's sponsors insist on adding, "and subject to the jurisdiction thereof"?

For insight, consider the words of Sen. Jacob Howard, co-author of the amendment's citizenship clause. In 1866, he wrote that the amendment "will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States..."

By extension, then, it is fair to conclude that, in addition to the children of those legally in the U.S. under the above exclusion, this would apply to the children of those illegally in the U.S. -- until the Supreme Court took up the question of the rights of illegal aliens to taxpayer services in 1982. In Plyler v. Doe, the judicial activists concluded that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

But Plyler v. Doe is historically and legally inaccurate. In the context of original intent, children born to those who have entered the U.S. illegally -- those who are not citizens -- are not "subject to the jurisdiction thereof." One would hope, in the course of the current debate about immigration, that Congress and the courts would actually pay homage to the plain language of our Constitution.

Not much chance of that, though, especially when it's not politically expedient.

(snip)

http://patriotpost.us/alexander/edition.asp?id=536

[TGRR]

If a baby is born in America, that baby is American.

Sorry if that pisses you off.

[Java_man]

Changing the birthright law would require a constitutional amendment.

the meaning of "jurisdiction thereof" was upheld in US v. Ark 1898

[Java_man]

BTW ... any slaves imported to the US after 1807 were done so illegally, should the children of these slaves been denied citizenship after the emancipation proclamation ?

[86Dude]

Originally Posted by TGRR

If a baby is born in America, that baby is American.

Sorry if that pisses you off.

That's NOT what pisses us off. It's the intent of the parent.

[soylentgreen]

Originally Posted by TGRR

If a baby is born in America, that baby is American.

Sorry if that pisses you off.

Yes, according to the current interpretation of the 14th Amendment. However, I hardly think that the folks that wrote that amendment intended for it to be used in the way it is being used now.

Let me ask you something...if an German woman travelled to France and had a baby over there, would that baby be French? The answer is obvious. Of course it wouldn't be!!

So, why do we allow foreigners to claim their babies are American simply because they popped out on our land?

[CCC]

Originally Posted by Java_man

Changing the birthright law would require a constitutional amendment.

I understand that in today's climate that that would have be the way to remedy this issue, with a constitutional amendment, as I indicate on this thread, and which presidential candidate Ron Paul agrees on.

Originally Posted by Java_man

BTW ... any slaves imported to the US after 1807 were done so illegally, should the children of these slaves been denied citizenship after the emancipation proclamation ?

Nope.

[Mister E.]

Nothing new here. Some people always want to edit The Constitution when it suits their agenda. Gay marriage anyone?

[grimrebuke]

Originally Posted by soylentgreen

Yes, according to the current interpretation of the 14th Amendment. However, I hardly think that the folks that wrote that amendment intended for it to be used in the way it is being used now.

Let me ask you something...if an German woman travelled to France and had a baby over there, would that baby be French? The answer is obvious. Of course it wouldn't be!!

So, why do we allow foreigners to claim their babies are American simply because they popped out on our land?

I know a few people who were born in Germany. They were German citizens until their US military parents had them naturalized as US citizens. So, if you had a baby in France it would, in fact, be French.
The key phrase in question, "subject to the jurisdiction" is actually quite clear. If the person is subject to the laws of the United States. People visiting the United States on work-visas, student-visas, or simply on vacation are subject to the jurisdiction of the state that they are visiting. When a foreign national is caught breaking a law, they are arrested and tried under the jurisdiction of the local or Federal authorities of the United States appropriate to the crime committed. They may be jailed, or they may have their visa revoked and be deported. In fact, the very term "illegal immigrant" reflects the fact that the individual is breaking a US law that they are under the jurisdiction of. If they were not "subject to the jurisdiction" of the United States, then they could not be breaking the law. In the case of foreign dignitaries, as they were the subject of the floor debate, these persons travel under the umbrella of diplomatic immunity. This means that these individuals are NOT subject to the jurisdiction of the United States but are, in fact, still under the direct jurisdiction of their home nations. Should these individuals commit an act that would be criminal under US jurisdiction, the only recourse that the US has is to revoke their privilege of passage and deport them. So long as they are travelling as a recognized diplomat, their children are considered citizens of their home country. The same is true for US diplomats travelling abroad. Those who travel on a diplomatic passport are immune from local law and are outside the jurisdiction of the host country.
There is one more point to be made here, and that is that the Native Americans were still considered non-citizens. Indian reservations are Federal land but under the legal jursidiction of the tribe or Indian nation and not the state in which the reservation resides. Because of this, children born to Native Americans would not become citizens of the United States or gain any rights thereof. One of the reasons for this specific language was that in 1868, several states still had significant populations of Native Americans that they were not in a hurry to have given all of the rights and privileges of citizenship.

[grimrebuke]

Originally Posted by Mister E.

Nothing new here. Some people always want to edit The Constitution when it suits their agenda. Gay marriage anyone?

Where in the Constitution does it give the government the right to make a law pertaining to procreation or cohabitation? Because I can point to the part where it talks about what rights the government doesn't have regarding the spiritual union known as marriage.

[TGRR]

Originally Posted by 86Dude

That's NOT what pisses us off. It's the intent of the parent.

So, you wish to hold children responsible for criminal acts on the part of the parent?

Good thing that will never be abused.

[TGRR]

Originally Posted by soylentgreen

Yes, according to the current interpretation of the 14th Amendment. However, I hardly think that the folks that wrote that amendment intended for it to be used in the way it is being used now.

Speculate all you like. That's the way the amendment is written, and that's how SCOTUS has viewed it.

Originally Posted by soylentgreen

Let me ask you something...if an German woman travelled to France and had a baby over there, would that baby be French? The answer is obvious. Of course it wouldn't be!!

I have no idea. This isn't France or Germany.

Originally Posted by soylentgreen

So, why do we allow foreigners to claim their babies are American simply because they popped out on our land?

Because that's what the constitution says. Sorry. The rule of law is more important than your outrage.

[TGRR]

Originally Posted by CCC

I understand that in today's climate that that would have be the way to remedy this issue, with a constitutional amendment, as I indicate on this thread, and which presidential candidate Ron Paul agrees on.

Remember what happened last time we used an amendment to limit freedom, rather than spread it?

Of course you don't.

[h2g2Fan]

http://en.wikipedia.org/wiki/Plyler_v._Doe

thread over

[CCC]

Originally Posted by TGRR

Remember what happened last time we used an amendment to limit freedom, rather than spread it?

Of course you don't.

I remember the first time we used an amendment to limit freedom, the 16th Amendment. When you join us in our crusade against this abomination, let me know. Otherwise, you're just posturing with irrelevant talking points, as always.

[CCC]

Originally Posted by Mister E.

Nothing new here. Some people always want to edit The Constitution when it suits their agenda. Gay marriage anyone?

Some people want to edit The Constitution in a legitimate manner, unlike those who have activist judges take matters into their own hands (gay marriage anyone?) or enact their own federal rulings that have no basis whatsoever in the constitution (abortion anyone?)

[TGRR]

Originally Posted by CCC

I remember the first time we used an amendment to limit freedom, the 16th Amendment. When you join us in our crusade against this abomination, let me know. Otherwise, you're just posturing with irrelevant talking points, as always.

Naw. Amendment XVI was used to set standards for taxation. Had nothing to do with freedom (though as I understand it, some people can only think of freedom as a counting-house stub).

I was referring to amendment XVIII. But I see you're already hiding behind a "poisoning the well" fallacy, so there's really no point debating it with you, since you can't hear anything you disagree with, anyway.

[TGRR]

Originally Posted by CCC

Some people want to edit The Constitution in a legitimate manner, unlike those who have activist judges take matters into their own hands (gay marriage anyone?) or enact their own federal rulings that have no basis whatsoever in the constitution (abortion anyone?)

Why do you hate amendment IX?

[CCC]

Originally Posted by TGRR

Why do you hate amendment IX?

I don't. Why do you hate Amendment X?

[CCC]

Originally Posted by TGRR

Naw. Amendment XVI was used to set standards for taxation. Had nothing to do with freedom (though as I understand it, some people can only think of freedom as a counting-house stub).

Oh, our freedoms have eroded fast since the passage of this abomination. And you're guilty until proven innocent with the I.R.S.

I was referring to amendment XVIII.

I know. I wasn't taking your bait.

But I see you're already hiding behind a "poisoning the well" fallacy, so there's really no point debating it with you, since you can't hear anything you disagree with, anyway.

Gibberish.