That's a free-access link so you can read the whole thing, which is very tightly written and hard to excerpt. A lot depends on the idea, expressed by Lincoln’s first attorney general, that "The Constitution uses the word ‘citizen’ only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other."
Then Barnett and Wurman ask: "Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?"
There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters....
Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship....
Posts
85 comments:
One might also ask "Has a Russian or Chinese pregnant woman who came to this country on a tourist visa to give birth in the US pledged obedience to the laws in exchange for the protection and benefit of those laws for the child she takes home?"
A nation is a community organized by legal jurisdiction, moral obligation, and geography held by force and consensus.
"Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?" Umm, no. But more specifically, it is absurd to reward a foreigner breaking US law with an entitlement for her child. The Constitution should not be read to demand absurdity.
A natural born citizen is to citizen mother and father. Others gain citizenship through pledges of allegiance and naturalization under Congressional legislation.
SCOTUS will agree with Trump. But the Order will be prospective only.
If Congress had to pass a statute to make Native American citizens about 50 years after the 14th Amendment was passed, there is no way that anchor babies can be considered citizens. Also, those Chinese birthing centers in CA can’t continue.
The 14th Amendment is not a suicide pact.
The precedent was recorded in ancient Greece in Plato's Republic and inspiration for the Republic of the United States of America and republican governance under The Constitution.
Perhaps cribbed from Richard Epstein a few days ago.
'Prospective only"
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
That would be a fair reading and expectation.
Constitution should be read as written, not as you want it to read. Babies who are born here are automatic citizens.
It is widely agreed that “subject to the jurisdiction” excluded the children of diplomats, Native Americans subject and with allegiance to tribal authority (this changed with the Indian Citizenship Act of 1924) and members of invading armies.
Dovetails with Congress deciding by statute who who is not "subject to the jurisdiction" under 14th Amendment.
And whether Congress ought to grant naturalized citizenship to children born to those illegally present in the United States is a policy issue distinct from whether the 14th Amendment has already done so.
Waiting for a constitutional interpretation would be more difficult to reverse once issued by SCOTUS.
The precedent was recorded in ancient Greece in Plato's Republic and inspiration for the Republic of the United States of America and republican governance under The Constitution.
Who said that?!
In Plato's "Republic," they killed newborns all the time. And there was no free speech. I've heard that the better translation is Plato's The State. Which makes a lot of sense because it's a blueprint for a damn dystopia.
About the only thing we got out of Plato was the idea that slavery was fine.
Plato's a smart guy, and he's very confident. But his book is mind-boggling bad. Anytime the Supreme Court starts acting like Platonic Guardians, we ought to impeach the fuck out of them.
The mother does not get citizenship because of the baby yet everyone talks about the mother's citizenship when talking about birthright citizenship. In this post
""Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?"
Jack asks:
"Has a Russian or Chinese pregnant woman who came to this country on a tourist visa to give birth in the US pledged obedience to the laws in exchange for the protection and benefit of those laws for the child she takes home?"
Just 2 of many examples in these conversations.
A baby born in the to 2 Chinese citizen parents does not have Chinese citizenship under Chinese law.
A baby born in the US to 2 Indian citizens does not have Indian citizenship under Indian citizenship law.
It was not even automatic for children born outside of the US to a US mother to have US citizenship. My sister had 2 sons born in the 70s while living permanently in Germany. Because the birth of one was not registered at the consulate in 30(?) days, it turned out, 30 years later that he was not a US citizen and he had to jump through all kinds of hoops to get citizenship.
I remember some question about Obama's citizenship had he been born outside US (he was born in HI) Because his mother was under 21 he did not get citizenship through her.
So what do you do with a baby who does not have any citizenship? (If birthright citizenship is ended)Say a Chinese baby who China refuses to accept
into the country?
John Henry
It is widely agreed that “subject to the jurisdiction” excluded the children of diplomats, but you're kidding yourself if you think that kids of foreigners w/diplomatic immunity don't get the exact same type of birth certificate as any other kid born in the same jurisdiction. All the "kid" has to do is take that certificate to the DMV for a driver's license or send it to the State Department for a passport.
https://cis.org/Report/Birthright-Citizenship-Children-Foreign-Diplomats
https://cis.org/Oped/Stop-Automatically-Granting-US-Citizenship-Children-Foreign-Diplomats
"Constitution should be read as written, not as you want it to read. Babies who are born here are automatic citizens."
I agree with the first statement. Where did the second one come from? Not the Constitution, certainly.
How big a problem is birthright citizenship?
It seems to me that the real problem is anchor babies. Even there I could not find good answers. The popular belief is that the citizen baby creates a right for the mother and other relatives to stay in the US. Looking into this a few weeks ago I found that there is no such right under law though waivers can be granted.
To the extent that anchor babies are a problem, Congress can fix this by statute. If the mother is here illegally, back she goes, regardless of baby status.
So if there is no anchor baby benefit, how many women would come to the US just to give birth? And even if that were not the purpose, how many babies would be born to illegal aliens, or temporary residents, students or women just passing through?
I would guess it would be in the low thousands, maybe low ten thousands. In a country of 335 million, why would that be a problem?
This assumes that the problem if illegal immigration and especially anchor babies is solved.
John Henry
Saint Croix said...
Constitution should be read as written, not as you want it to read. Babies who are born here are automatic citizens.
So explain American Samoa. And the SC agreeing American Samoans are not citizens but American Nationals. There is absolutely no way to reconcile that with the juvenile drivel you just wrote.
"Subject to the jurisdiction thereof" had a meaning when the 14th was adopted. Illegal immigrants, birth tourists, and people just passing through do not fall within that meaning. And there's the second part- often ignored: "and of the State wherein they reside". A birth tourist does not reside within a state. A Mexican who wanders over the border does not reside in the USA. A New Jersey woman giving birth in a specialized NYC hospital? The child is a citizen of NJ, not NY, the state in which she resides. State citizenship doesn't mean as much now as it did then, but, that's the case.
It's been a while since I read The Republic. I probably misremember the content and tenor. I therefore withdraw by submission until further review to discern its value.
"Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?"
The birthed child is not a citizen of anything and cannot have violated any of our laws. The 14th Amendment's jus soli declaration clearly says what it says. Someone should tell these brilliant legal nuts that newborns cannot know anything about being alive nor can they speak for themselves if they did,
It is widely agreed that “subject to the jurisdiction” excluded the children of diplomats, but you're kidding yourself if you think that kids of foreigners w/diplomatic immunity don't get the exact same type of birth certificate as any other kid born in the same jurisdiction. All the "kid" has to do is take that certificate to the DMV for a driver's license or send it to the State Department for a passport.
And according to one Facebook friend - he witnessed just that. Everyone getting citizenship who was born here developed in the mid 1900s as a result of lazy state department clerks. Nothing formal was ever put into law saying- "Come on, come into the United States! Free citizenship with every birth!"
One question I seldom see discussed is how many legal immigrants we should permit.
My gut tells me that we could easily absorb 1 million per year. My brain tells me that I really don't know and it could be more than that or less. We do need some and I would be happy to listen to arguments on how many.
Caveats:
1) Illegal immigration goes to zero (I would include any leakage in the 1mm)
2) Immigrants are vetted so no criminals or wrongdoers
3) They come from a range of countries around the world, not all from one place.
4) They get sprinkled around the US, not in one place. The better to encourage assimilation.
Probably some other caveats that don't come to mind right off.
John Henry
What was the meaning of "and subject to the jurisdiction thereof" as understood by the average ratifier of the 14th Amendment?
As a matter of law, it is somewhat murky. It is obvious that the people who wrote the 14th Amendment did not have it in mind to implement birthright citizenship. But it can be argued that they did so inadvertently, by their choice of words.
Setting all that to one side, what is the practical argument for birthright citizenship? Let us say, that A gets B pregnant, twice, with children C and D. C is born in, say, China. D is born in the USA. Why should this confer a right on D that is not enjoyed by C?
Trivia about Puerto Rico:
We are legally considered a "state" under citizenship law. Anyone born in PR is a citizen under 14A by virtue of being born in a state. We are also "citizens" of PR under 14A. As is everyone who lives in a state.
As such, we are "natural born citizens" entitled to run for the presidency.
However, as I found when I ran in 1988, we may not be "residents" of the US and might not meet the 14 year residency requirement. However, that requirement is unclear and it is possible that we are residents.
I'd be OK because I have lived 14 years in the US, though not recently. My wife might not be.
John Henry
My sister married a German man in the early 70s and lived in Germany for 30 or so years. Legal resident but not citizen AFAIK. Her husband was ethnic German born in Sudetenland in 43 or so.
He had a weird citizenship status. He was essentially stateless but had a legal right to live in Germany. Their 2 kids became German citizens but it was not automatic and required a bunch of hoop jumping.
One was registered at the consulate and became a US citizen. She didn't register the other, forgot or lazy or whatever. He did get a US passport and moved to the US in the 90s. At some point he had to do something legal and it transpired that he was not really a US citizen because he had never been registered. He did eventually become a citizen but it was quite a process and he was threatened with deportation at one point even though married to an American and with 2 born in US kids.
John Henry
"Subject to the jurisdiction thereof" had a meaning when the 14th was adopted. Illegal immigrants, birth tourists, and people just passing through do not fall within that meaning.
As a wise man once said "There you go again."
You are talking about the mother, who does not receive citizenship.
It is the baby who does. You need to address why or why not the baby is not under the jurisdication of the US.
1) If the baby is a citizen of the mother's country
or
2) If they are not a citizen of the mother's country (See India, China and other countries)
John Henry
I screwed up the italics. Trying again
"Subject to the jurisdiction thereof" had a meaning when the 14th was adopted. Illegal immigrants, birth tourists, and people just passing through do not fall within that meaning. [emph added]
As a wise man once said "There you go again."
You are talking about the mother, who does not receive citizenship.
It is the baby who does. You need to address why or why not the baby is not under the jurisdiction of the US.
And then there are two different types of baby:
1) If the baby is a citizen at birth of the mother's country
or
2) If they are not a citizen at birth of the mother's country (See India, China and other countries)
John Henry
If we could get rid of this, it would take some pressure off the hospitals near the border.
Probably some other caveats that don't come to mind right off.
Entry fees. Gotta pay your way.
That's odd
Apparently I should not nest formatting. I added a bold inside an italicised section above. It closed the bold but not the italics.
Thinking I had screwed up, I reposted, taking care to close the ital and the same thing happened.
I also cannot delete the original comment. There used to be a delete trashcan by each comment but it is no longer there.
Using Firefox browser.
John Henry
uh-oh. Now I seem to have turned on the dreaded italics for everyone. I am adding a /i with brackets at the top of this comment to see if I can turn it off.
If not, I am really, really sorry. Tell me how to fix it.
John Henry
I could be wrong, but conceptually one cannot benefit from a crime committed by another.
Actually, Amendment 14 IS a suicide pact. The death spiral was set in motion as soon as it was ratified. Maybe something better than the USA will eventually come along
Trump Might Have a Case on Birthright Citizenship.
You dooooon’t say!
I was in France a few years ago and met a young French woman who told me that she had been born in my hometown. She added that she had dual (France & USA) citizenship and both passports. I asked how she came to be born in the USA and she explained that her Father was assigned to the French Consulate.
I never gave it a second thought until the recent controversy, but it seems obvious now that everyone would agree that she should not have USA citizenship, but there you are.
Here's a politicized response to the article. I only speed read it but much of it appeared to be of law prof angels dancing on head of a pin variety.
https://reason.com/volokh/2025/02/15/birthright-citizenship-a-response-to-barnett-and-wurman/
If Congress passes a law along the lines of the EO, this issue is bound to come before the SC. We have to wait and see if that happens.
As long as it is not retroactive, I suspect the SC will go along with it.
If Congress passes a law along the lines of the EO, this issue is bound to come before the SC. We have to wait and see if that happens.
As long as it is not retroactive, I suspect the SC will go along with it.
Birthright independent of citizenship or allegiance divides families. There are clearly some kinks to iron out, before a dream becomes a nightmare.
The NYT article exhibits a tin ear in referring to African-Americans freed during the Civil War.
There you go again: It is the baby who does. You need to address why or why not the baby is not under the jurisdiction of the US. The baby is in custody of the mother- non compos mentis to make any decisions. With the mother moving the baby wherever she wants- and keeping away from authorities- how is the baby under the jurisdiction of the USA? The baby isn't. And if the baby is immediately whisked off to China as birth tourism does and spends the next 18 years there- well, same question, where's the mutual obligation? And if the now grown "citizen" gets arrested on some trumped up charge- is China required to notify the US ambassador?
Pardon this simple expln - but the initial law was provided in part for the slaves that were brought here against their will. right?
Now we have mobsters named Joe Biden - letting in un-vetted illegals. Illegally. In order to stuff the ballot box.
John Henry: not on point, but I’m curious: did the Bundeswehr try to draft your nephew?
JSM
The birthed child is not a citizen of anything and cannot have violated any of our laws.
Non sequitur.
The 14th Amendment's jus soli declaration clearly says what it says.
Truism.
Someone should tell these brilliant legal nuts...
Ad hominem.
...that newborns cannot know anything about being alive nor can they speak for themselves if they did
Non sequitur.
I don't think you read the article, or at least you're not responding to the article.
Assume Trump wins. What do we do? We don't have stomach to deport DACA, do you think we will deport people born here? Do they stay forever as a different class of "non citizen"? Are there children citizens? What would you deny them? Health care? Education?
"The 14th Amendment's jus soli declaration clearly says what it says.
Truism."
The first "says" doesn't have the same range as the second one.
One sentence in the NY Times article I can disagree with- YMMV: Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity. Unprovable statement. Nations have been conquered by large scale immigration. They're invaders.
And the elephant in the room- that No one saying Birthright means Birthright is addressing is- what about American Samoans? And the widely understood fact that American Indians- even if born off the reservation on clear US territory were, right up until the Indian Citizenship act of 1923 passed, were not citizens. If Birthright means Birthright then those born off the reservation would have been citizens, but they weren't.
And there's another exception written into the citizenship act of 1952, though there are two things I don't know...
§1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:...
...
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
The two things I don't know are, when the act was passed, were there any tribes or whatever to which this applied: "Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;" and second, are there any to which it still applies?
I hope that turns off the bold. I had the same problem with italics last night that John Henry had today- they wouldn't turn off for me.
Hey, John Henry.
I voted for GHWB in 1988, but had I known, Buddy...
Apparently not.. Try again?
What would you deny them? Health care? Education?
These are "rights" that don't exist for U.S. citizens, except through statutory law (not Constitutionally). If their parents are here illegally and don't pay taxes, I have no problem "denying" them "healthcare" or "education." If the parents are here legally, and pay taxes, then citizenship is not the issue.
"The 14th Amendment's jus soli declaration clearly says what it says.
Truism."
The first "says" doesn't have the same range as the second one.”
At the risk of overcommenting, I would say, because this argument interests me, that a good explanation of this fine point is to rephrase it as the 14th amendment declares what its content is, so the two says are very different and it is not a tautology.
Like when Popeye says “I amsk what I amsk” the scope of amsk is the same and it is a tautology.
I'm almost certain there are taxpayer funded NGO's telling pregnant women to get across the border ASAP.
As a peripheral side note, there were some Chinese women sentenced to prison for "birth tourism" activity in California.
I am glad that there will be better border enforcement, but I think attempting to end birthright citizenship is a bad idea. It would change the fundamental nature of our country.
I also find Barnett's arguments to be clearly BS he's come up with to advance his political preference. For a 150 years we have understood the meaning of the 14th amendment. There has not been a technological or cultural innovation that requires us to find a new understanding, the original meaning is quite plain and no cherry-picked historical analysis is required.
“There has not been a technological or cultural innovation that requires us to find a new understanding”
I would say that the whole problem is the now ready availability of cheap air travel from the world at large. Priorities to 1950 a pregnant person could ride a train or walk from Mexico or Canada or take a Long ocean voyage, so birthright recipients were manageable. But now you don’t need a lot of cash to easily obtain it in large numbers. So there has been significant new technology involved.
Why not just eliminate the process of admitting non citizen relatives of citizens. Then there would be less incentive.
"It would change the fundamental nature of our country."
Is rewarding foreigners for breaking our laws in alignment with the fundamental nature of our country?
Without birthright citizenship, how do we know that Trump is a natural born citizen eligible to be President of the United States? His mother was born on the Isle of Lewis in Scotland and his father’s mother and father were born in Kallstadt, then part of the Kingdom of Bavaria.
I will grant that he would only have to prove that one of those three people was a U.S. citizen under his definition. But what documents would have to be produced?
TomHynes said...
Assume Trump wins. What do we do? We don't have stomach to deport DACA, do you think we will deport people born here? Do they stay forever as a different class of "non citizen"? Are there children citizens? What would you deny them? Health care? Education?
Just because the 14th amendment does not require granting citizenship doesn't mean that citizenship can't be granted legislatively. But definitely on a go forward basis I would favor not extend citizenship to any newly born children of illegal immigrants or the children of those here on a tourist visa.
Lance: The 14th Amendment protects the newborns rights, not its parent's rights.
"The 14th Amendment protects the newborns rights..."
But only if they're born, right? If they're not born yet, it's still okay to kill them, isn't it?
Volokh Conspiracy response on birthright citizenship
Mason, your an A-hole: You assume that I believe in murdering babies - which I do not.
This topic is a major sideshow distraction as a key part of the flood the zone offense. They don't care if they ultimately lose the birthright ban. It's a MAGA win no matter what happens. It's not an 80-20 issue. The 6-year old numbers suggests a weak split IOW, nobody but true ideologues really cares about it either way
From Cato article 2018: What about children born to mothers residing in the United States illegally? Even still, a plurality (48%) support birthright citizenship for children born to mothers living in the U.S. illegally while 38% oppose and 14% aren’t sure. "
Ok, stop shouting.
"You assume that I believe in murdering babies - which I do not."
Ok- I apologize. Let me restate that:
"If they're not born yet, the politicians you support still say it's okay to kill them, don't they?"
C'mon. They're simply undocumented...despite the bus and plane tickets and cash cards.
The Constitution says nothing about "pledged obedience." The test is "subject to the jurisdiction." If someone can be arrested and held to answer for a violation of law, he is "subject to the jurisdiction."
A strict textual analysis or the issue of original intent is largely IRRELEVANT when there has been a practice for over 150 years. History has interpreted the clause one way or the other. This isn't 1875.
This isn't 1875.
No it's not. The "practice over 150 years" was mostly in times when we didn't have millions of people sneaking over the border illegally, or birth tourists coming in just to have a baby. So it's reasonable to reevaluate that practice.
Judge Leo Sorokin of the US District Court in Boston calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.
Judge Sorokin rejects that argument, saying that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” Actually, it crosses the frivolous line into stupid.
"If someone can be arrested and held to answer for a violation of law, he is "subject to the jurisdiction.""
Another dumbass statement that ignores the history of what "subject to the jurisdiction thereof" meant at the time and by history. Invading soldiers if captured are "subject to the jurisdiction", yet, if they had family and one was born here- it's universally accepted that child is not a citizen.
James K said...
Thanks for turning it off- my multiple tries didn't work. There's a glitch in the disqus...
Public service message: If you turn on two features such as both italics and bold, turn them off afterwards in the inverse order.
E.g.: before <i><b>text</b></i> after.
Strangely everything is still in bold on my iPhone (Safari).
John henry said...
" It seems to me that the real problem is anchor babies. "
I want to say, that i WHOLLY agree with John henry on this..
This REAL Problem is anchor babies..
Kick the mom out.. The kid will go with
debold
John henry said..."
There used to be a delete trashcan by each comment but it is no longer there.
Using Firefox browser."
same here! (no trash can while using Firefox..)
When i want/need to delete something, i hop over to Edge browser; where my comments still have the trash can..
also, thanx (to whomever said) next <b and <i inversely .
I Sure miss the old Preview function.
We have a SCOTUS where the plain text of the Constitution do not matter. So, yes, there's a plausible path to this conclusion.
If unaware, Ilya Somin is as open borders a guy as exists. There are zero limits he does have a deep problem with.
The freed slaves: can hardly be said to have entered into a social compact with the U.S., or come under the "lawful" jurisdiction of that country. But there is no other country for any of them, and post-Civil War there is a realistic hope that they will be citizens in the full sense. As Coulter keeps saying, the status of indigenous people born in the U.S. was always up to Congress to decide. Not automatic with the 14th Amendment.
The Wong Kim Ark case, Court said yes to child being a U.S. citizen, parents were both in the country legally. I think the Court presumed the only reason the parents had not become citizens was that people of Chinese ancestry were excluded from citizenship. Court could have found narrowly: yes in this case, parents excluded from citizenship, but still defended the sound principle that if parents are in the country illegally, no citizenship for child, and even if parents are in country legally, it is up to Congress to decide. Perhaps a period of years of legality to qualify?
Kaus says a constitutional amendment could clear everything up. I think it is wise to leave some things to Congress. Is there any need to clear up "natural born" for presidential candidates?
First thing to remember is the when it comes to immigration, Ilya Somin is an open borders fanatic, so you always know what he's going to say
The second thing to note is that I've repeatedly challenged the people at Volokh to come up with a single example of a baby born in the US to foreign tourists in the 25 years after the 14th was passed, who received a US passport or other proof of US citizenship because of that birth.
None of them have ever provided such an example.
Which means that if SCOTUS follows the rules they've laid down about interpretation of the 14th, Trump wins.
The final thing to note is that Native American children born in the US, even those who did who did NOT live on Reservations, still did not get "natural born citizenship" under Wong Kim, and did not get that citizenship until Congress passed a law giving it to them in 1925.
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