Citizenship – Illegal Immigration – Judicial Intervention

U.S. President George W. Bush (R) and first lady Laura Bush (3rd R) join five new American citizens in pledging allegiance to the U.S. flag following their citizenship ceremony at the reopened National Museum of American History in Washington November 19, 2008. Bush participated in the event where the renovated museum was reopened.
Photo Credit: Reuters and

Have you wondered why any baby born on American soil with illegal parents is considered a legal American citizen? The answer may shock you as much as it did me.

My reference is a discussion at the Heritage Foundation, dated March 30, 2006 by John C. Eastman, Ph.D.

John C. Eastman, Ph.D., is Professor of Law at Chapman University School of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence. This memorandum stems from an amicus brief filed by the Center for Constitutional Jurisprudence in support of respondents in Hamdi v. Rumsfeld.

The key to the 14th Amendment which defines U.S. citizenship are the words “subject to the jurisdiction thereof,” which means that no one can be a U.S. citizen if their allegiance is to any other country. For instance, an Ambassador to the U.S., living in the U.S. but serving allegiance to another country cannot be a U.S. citizen – and neither can the Ambassador’s child…well, maybe.

The Citizenship Clause of the Fourteenth Amend­ment provides that “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.”[1] As manifest by the con­junctive “and,” the clause mandates citizenship to those who meet both of the constitutional prerequi­sites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.

Today’s incorrect viewpoint, according to Dr. Eastman:

The widely held, though erroneous, view today is that any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the juris­diction of the United States, which is to say, sub­jected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Why that viewpoint is incorrect:

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s par­ents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth­right citizenship provided by the 1866 Act.

An historical example: In Elk v. Wilkins, John Elk was born on an Indian reservation and eventually moved off the reservation, renounced his tribal allegiance and applied for U.S. Citizenship. He was denied citizenship because at birth, his allegiance was not subject to the jurisdiction of the United States. According to the Supreme Court, he “owed immediate allegiance to” his tribe and not to the U.S. – and his tribe was considered an alien nation. In a geographical sense, Elk was born within the U.S., but according to the 14th Amendment was not subject to U.S. jurisdiction.

Then comes the Court action that changed everything.

In Wong Kim Ark, Justice Horace Gray, writing for the Court, held that “a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and resi­dence in the United States,” was, merely by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment

Justice Gray [who also served on the Court in the Elk case] appears not to have appreciated the distinction between partial, territorial jurisdiction, which subjects all who are present within the terri­tory of a sovereign to the jurisdiction of that sover­eign’s laws [such as an Emperor, a King, a Prince, a Queen] and complete political jurisdiction, which requires allegiance to the sovereign as well.

By limiting the “subject to the jurisdiction” clause to the children of diplomats, who neither owed alle­giance to the United States nor were (at least at the ambassadorial level) subject to its laws merely by virtue of their residence in the United States as the result of the long-established international law fic­tion of extraterritoriality by which the sovereignty of a diplomat is said to follow him wherever he goes, Justice Gray simply failed to appreciate what he seemed to have understood in Elk, namely, that there is a difference between territorial jurisdiction, on the one hand, and the more complete, alle­giance-obliging jurisdiction that the Fourteenth Amendment codified, on the other.

Gray “astoundingly” ignored the Constitution’s requirement for a citizen to swear an oath to support the Constitution of the U.S. and renounce all allegiance to any other country.

Finally, Justice Gray’s position is incompatible with the notion of consent that underlay the sover­eign’s power over naturalization. What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children merely by giving birth on American soil, whether or not their arrival on America’s shores was legal or illegal, temporary or permanent.

Justice Gray saw only two classes of children ineligible for U.S. citizenship: the children of ambassadors and other foreign diplomats, and the children of members of invading armies who were born on U.S. soil while it was occupied by a foreign army.

…apart from these two narrow exceptions, all children of foreign nationals who managed to be born on U.S. soil were, in Justice Gray’s formulation, citizens of the United States. Children born of parents who had been offered permanent residence but were not yet citizens, and who as a result had not yet renounced their allegiance to their prior sovereign, would become citizens by birth on U.S. soil.

Children of parents residing only temporarily in the United States on a student or work visa would also become U.S. citizens. Children of parents who had overstayed their temporary visas would like­wise become U.S. citizens, even though born of parents who were now in the United States ille­gally. And, perhaps most troubling from the “con­sent” rationale, even children of parents who never were in the United States legally would become citizens as the direct result of the illegal action by their parents. This would be true even if the par­ents were nationals of a regime at war with the United States and even if the parents were here to commit acts of sabotage against the United States, at least as long as the sabotage did not actually involve occupying a portion of the territory of the United States.

The notion that the framers of the Fourteenth Amendment, when seeking to guaran­tee the right of citizenship to former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in its terri­tory illegally is simply too absurd to be a credible interpretation of the Citizenship Clause.

The U.S. Congress has the sole power to grant U.S. citizenship to children of foreign nationals. but so far, this has not happened. The idea of “birthright” citizenship, is, Dr. Eastman says, “contrary to the principle of consent that is one of the bedrock principles of the American regime.”

In 2006, the Heritage Foundation called for Congress to revive it’s “constitutional power over naturalization.”

It is time for the courts, and for the political branches as well, to revisit Justice Gray’s erroneous interpretation of the Citizenship Clause, restoring to the constitutional mandate what its drafters actually intended: that only a complete jurisdic­tion, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented.

“While Congress seems to be reluctant to get at odds with a “co-equal” branch of government, (exercising it’s own constitutional authority to interpret the Constitution in way contrary to the pronouncements of the courts) Eastman says it is their sole duty to do so.

Congress’s power over natu­ralization is “plenary,” [complete, entire, absolute] while “judicial power [Supreme Court] over immigration and naturalization is extremely

Dr. Eastman’s entire paper is well worth a read – you’ll find much more detail. Look for the comments about creating redundancy within the Constitution interesting.

The Citizenship clause in the 14th Amendment was written by Senator Jacob M. Howard (MI). 14th gives us his own words to explain the meaning and intention of the Citizenship clause:

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.

The above discussion continues with Senator Howard responding to Senator Lyman Trumbull who was chairman of the Judiciary Committee and author of the 13th Amendment. Then Senator Johnson takes the floor:

…all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.

There is more discussion and more confirmations from members of the U.S. Senate as to the original intention of the 14th Amendment. Please visit 14th If you are interested in illegal immigration, you’ll want this document bookmarked.

A reminder: Congress is solely responsible for citizenship.

Related Reference:
Citizenship clause of the 14 Amendment