Are the children of illegal immigrants... (14th amendment)

[A18]

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.

Michigan Senator Jacob Howard insisted upon the addition of the text in bold specifically because he wanted to make it clear that the mere "accident of birth" in the United States was not sufficient to justify citizenship. "[The amendment] 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."

Despite that addition, the Supreme Court has interpreted the Fourteenth Amendment as granting citizenship to every person born in the United States.

What do you think is the proper interpretation?

[KillerPollo]

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.

Michigan Senator Jacob Howard insisted upon the addition of the text in bold specifically because he wanted to make it clear that the mere "accident of birth" in the United States was not sufficient to justify citizenship. "[The amendment] 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."

Despite that addition, the Supreme Court has interpreted the Fourteenth Amendment as granting citizenship to every person born in the United States.

What do you think is the proper interpretation?

This is good. It is ridiculous to be born in a country and not have given citizenship. Like The Mennonites in Mexico did not get their Mexican citizenship until the late 80s... in spite of having been there for a few generations.

[Jake]

No person born in this country to parents that are not already citizens or legally here should become a citizen. The fact that a Mexican can waltz across the border to have a child and have that child be a citizen is more than disgusting.

[A18]

Do the people voting yes want to post an argument, or do they just pick the interpretation that gets the result they like?

[ag]

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.

Michigan Senator Jacob Howard insisted upon the addition of the text in bold specifically because he wanted to make it clear that the mere "accident of birth" in the United States was not sufficient to justify citizenship. "[The amendment] 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."

Despite that addition, the Supreme Court has interpreted the Fourteenth Amendment as granting citizenship to every person born in the United States.

What do you think is the proper interpretation?

Your statement that all foreigners's children are automatically US citizens is not true. Example: a child of the Canadian ambassador born in a US hospital might not be eligible, since at the time of birth his parents have diplomatic immunity and are not, in a sense, subject to US jurisdiction.  On the other hand, illegal immigrants are clearly subject to the jurisdiction of the United States, since otherwise it would have been impossible to prosecute them for murder.  So, your choice: either their children are US citizens, or you can't prosecute them in a US court for any crime (since that is the exact interpretation of being "subject to US jurisdiction"), or you change the constitution.

In fact, the highlighted text (as well as the intent you cite) is very clear: the citizenship by birth is tied to the issue of jurisdiction, not of legality of presence in the United States. This does exclude diplomats, who cannot be prosecuted in US courts without agreement of their home governments, but not anybody else. Had the Congress wanted to exclude children of illegal immigrants, it could clearly state "children of parents legally present in the United States".  The fact that it chose to say "subject to the jurisdiction" and not "legally present" is a very clear statement of intent.  Once the courts ruled that illegal immigrants can be tried in US courts under US laws (i.e., are subject to the jurisdiction of the US), there is no ambiguity in interpretation whatsoever.

[A18]

LOL. Ag is so clueless.

"Subject to the jurisdiction thereof" is a common law concept. It has nothing to do with whether you can prosecute that person for murder. A state can prosecute any person for murder, since common law is not binding upon sovereign powers.

[ag]

LOL. Ag is so clueless.

"Subject to the jurisdiction thereof" is a common law concept. It has nothing to do with whether you can prosecute that person for murder. A state can prosecute any person for murder, since common law is not binding upon sovereign powers.

Well, I agree, I oversimplified. However, US courts did rule repeatedly in other contexts that illegal immigrants are subject to US jurisdiction.  For instance, if illegal immigrants weren't subject to US jurisdiction they could legally engage in trade with Cuba from the US, without violating US trade embargo.

Same applies to (non-immigrant) foreigners legally present in the US: if a foreign student at a US school is found to have visited Cuba on vacation and brought in some cigars, not only would his visa likely be annulled (that US can do without reason, so there is no violation here), but he would also be fined. Since the US embargo explicitly applies only to those "subject to US jurisdiction" (US historically has been opposed to "secondary embargoes" such as those that Arabs tried to impose on Israel, so this is a very explicit position of the US gov't), such a fine would have been illegal under US law if the student were not subject to US jurisdiction.

Even simpler: foreigners are not allowed to bring into the US Cuban cigars for their personal consumption. If they were not subject to US jurisdiction, there would have been no basis for this.

It is a long-standing position of the United States government that all foreigners physically present in the US are subject to its jurisdiction (with possible exception of foreign diplomats). The courts have repeatedly agreed to this in numerous contexts. It would be impossible to separate the citizenship context without affecting the rest.

[ag]

Here is what US State Dept. has to say about it (at http://usinfo.state.gov/products/pubs/constitution/amendment.htm)

"COMMENTARY:
The principal purpose of this amendment was to make former slaves citizens of both the United States and the state in which they lived and to protect them from state-imposed discrimination. The terms of the amendment clarify how citizenship is acquired. State citizenship is a by-product of national citizenship. By living in a state, every U.S. citizen automatically becomes a citizen of that state as well. All persons naturalized (granted citizenship) according to law are U.S. citizens. Anyone born in the United States is also a citizen regardless of the nationality of his parents, unless they are diplomatic representatives of another country or enemies during a wartime occupation. Such cases are exceptions because the parents are not "subject to the jurisdiction" of the United States. The amendment does not grant citizenship to Native Americans living on reservations, but Congress has passed a law that did so."

[Emsworth]

Yes: The children of illegal aliens born in the U.S. are citizens.

This issue is not a simple as some suggest. The issue here is not whether the parents (the illegal immigrants) are subject to the jurisdiction of the United States. The issue is whether the child is subject to the jurisdiction of the United States. Thus, when Sen. Jacob Howard stated, "This will not, of course, include persons born in the United States who are foreigners, aliens..." he was stating only that if the children were foreigners or aliens, they would not be citizens of the United States. He was not stating that if the parents were foreigners or aliens, the children would not be citizens of the United States.

The phrase "subject to the jurisdiction thereof" is very closely related to the common law, which defined citizenship on the basis of allegiance and jurisdiction. As far as the common law is concerned, the two are essentially the same. In the words of the jurist Albert Venn Dicey, a person's nationality depended "upon his being born within the jurisdiction and allegiance of the King." This view was confirmed by the Chairman of the Senate Judiciary Committee, Sen. Lyman Trumbull. When explaining the meaning of "subject to the jurisdiction thereof," he said: "Not owing allegiance to anybody else. That is what it means."

On these grounds, I will assume for the remainder of my discussion that "subject to the jurisdiction thereof" and "owing allegiance thereto" are one and the same.

In the words of Sir William Blackstone, "Natural allegiance is ... due from all men born within the king's dominions immediately upon their birth." Everyone who owes natural allegiance is a subject at the common law: therefore, "'British subject' means any person who owes permanent allegiance to the Crown" (Albert Venn Dicey).

A child born in England is not at the common law a subject, if he does not owe allegiance to the Crown. This exception encompasses two categories of persons: firstly, the common law does not recognize children of ambassadors as subjects; secondly, it does not recognize children of enemy invaders or occupiers as subjects. Neither of these groups owe "natural allegiance" to the Crown; therefore, neither is a natural subject.

These two exceptions are the only ones recognized. Children of all other foreigners born in England are always deemed to owe allegiance to the Crown. Lord Chief Justice Sir Alexander Cockburn stated that allegiance was owed by "every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country ... save only the children of foreign ambassadors ... or a child born to a foreigner during the hostile occupation of any part of the territories of England."

Similarly, in his Commentaries on American Law, James Kent (Chancellor of the State of New York), remarked that the rule of common law applied "without any regard or reference to the political condition or allegiance of [the child's] parents, with the exception of the children of ambassadors [and] children born in the armies of a state."

Thus, at the common law, any person born in the dominions of the Crown owed natural allegiance to the King, and was subject to his jurisdiction, regardless of parentage (excepting only children of ambassadors, and children of enemies during invasions or occupations). As Justice Noah Swayne said in U.S. v. Rhodes, there is "no warrant for the opinion [169 U.S. 649, 663]   that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

I don't think that individual illegal aliens are considered an enemy army occupying parts of the United States. Therefore, I would reach the following conclusion: A child of an illegal alien born in American territory owes allegiance to the United States, and is therefore subject to the jurisdiction thereof. Accordingly, a child of an illegal alien born in American territory is a citizen.

[MODU]

While I voted yes, I personally do not believe they should be.  Otherwise, I have some friends from foreign nations who should be granted citizenship just as easily as a baby being born.

[A18]

Maryland Senator Reverdy Johnson was even more explicit: "[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."

Furthermore, Senator Howard made it very clear that he understood the text as "simply declaratory of what I regard as the law of the land already."

Federal laws governing naturalization, since at least 1795, 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.

By "subject to the jurisdiction thereof," they meant subject to the jurisdiction of the United States in every sense.

It would be difficult to argue that the son or daughter of two aliens is not an alien, when citizenship has always had a meaning in this country fixed upon parenthood or naturalization.

[Emsworth]

Maryland Senator Reverdy Johnson was even more explicit: "[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."

Senator Johnson's view is not contrary to what I have said. A child born in the United States, and not to a foreign ambassador or to a member of an invading enemy army, is not "subject to some foreign power," but rather owes allegiance to the United States, as the common law provides.

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However, the "law of the land" Sen. Howard speaks of is exactly the same as the common law rule. In 1805, the Supreme Judicial Court of Massachusetts declared that citizenship is "governed altogether by the principles of the common law." The United States Supreme Court confirmed this in several cases, including Levy v. McCartee and U.S. v. Rhodes.

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Of course. But the allegiance I speak of is owed not by the parent, who remains an alien, but by the child born in the United States, who is a citizen. Any child born in a given country owes allegiance to the sovereign power thereof, by the common law, excepting children of ambassadors and children of members of invading armies.

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But "subject to the jurisdiction thereof" has a meaning at the common law. A child of an alien born in England is subject to the jurisdiction of the Crown, and owes allegiance to it, "no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country" (Lord Chief Justice Cockburn).

If we accept the common law rule, a child born to alien parents in the U.S. is subject to the complete jurisdiction of the U.S. in every sense whatsoever.

[A18]

It is common practice among nations to give citizenship to the children of their citizens, even if they happen to be visiting another nation at the time of birth. Would you go as far as to argue that a child who is a citizen of another nation is not "subject to a foreign power"?

[Emsworth]

It is common practice among nations to give citizenship to the children of their citizens, even if they happen to be visiting another nation at the time of birth. Would you go as far as to argue that a child who is a citizen of another nation is not "subject to a foreign power"?

I would argue that, as far as the common law is concerned, it makes very little difference what another nation does or does not do. The position of the common law is that any allegiance owed to the other country of the child's parents is not valid. To quote Sir William Blackstone, "Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection."

[A18]

I direct you to Section 2 of the article: "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."

Indians not taxed are, in spite of section 1, still excluded from the count, presumably for the reason that they are not citizens. Their full exclusion from the basis of representation seems completely inconsistent with the idea that they are citizens; all other persons are now included.

Yet Indians, not taxed, are born in the United States.

[ag]

It is common practice among nations to give citizenship to the children of their citizens, even if they happen to be visiting another nation at the time of birth. Would you go as far as to argue that a child who is a citizen of another nation is not "subject to a foreign power"?

Not at all common practice (at least, not universal). Not that it would matter, but my daughter was born in Mexico. While both myself and my wife at the time were nationals not of Mexico, but of another country (which I will leave unnamed), she had to be naturalized as a citizen of that country, which she was, at the age of some 2 months, following our formal petition to the Head of State of that country.  Had we chosen not to petition the foreign government on her behalf, the naturalization would not have happened. Her Mexican citizenship, on the other hand, was immediate by birth.

In any case, this is irrelevant, since the relevant law here the US common law.  As has been made very clear by Emsworth, this law disregards any possible outside allegiance (which might or might not exist by the national law of some other country - in many countries it does not, in fact, exist) and views any person born in the US (with clearly defined exceptions) as owing allegiance to the US and US alone. 

Even in case of US not all children of US citizens born abroad are automatically citizens by birth.  If I remember correctly, the legal provision requires at least one US-citizen parent to have lived some number of years in the US (an American colleague of mine actually had to prove that, by digging out his college transcripts and old tax returns, I think).  Or, may be, the key is that the parent is US citizen by birth - I don't really remember. If that is not satsified, the child might still be naturalized as an American, but is not American by birth. This legal provision is established by law and could be changed, so, in principle, there is nothing that prevents the Congress from requiring naturalization of all foreign-born children of US citizens.

From this point my post is really irrelevant to the original question - just some extra thoughts on the matter.

I don't see the practical point of changing the existing practice.  Generally speaking, current US immigration practice actually punishes the non-citizen parents of US-citizen kids, irrespective of their immigration intent.  The child cannot "sponsor" his/her parents for legal immigration to the US until s/he turns 21 (after which it takes a lengthy family reunification process to achieve), but existence of such a child is viewed as evidence of immigration intent, which severely prejudices issuance of non-immigrant visas.  Furthermore, existence of such a child provides no protection whatsoever from deportation for his/her parents (the existing provision that deportation might be waived to avoid causing "undue hardship to a US citizen" has been interpreted in the sense that it is not an undue hardship for the child to either follow the parents to their home country or to be left without them in the US).  If anything, having a US citizen child makes a foreigner's life in the US more, not less, difficult. 

So, the only incentive a foreigner has for giving birth in the US is the future welfare of the child.  Given that the child is likely to be growing up culturally American (despite some claims to the contrary, most serious studies show that second-generation Americans today are as likely or more likely to be assimilated into the US culture as their predecessors 100 years ago), what the current practice avoids is creating a subclass of US-born and bred illegal non-citizens (they can hardly be called immigrants, since they never migrated). In fact, in many cases they might be impossible to deport, since, unless they voluntarily apply for some foreign citizenship, if they are not American, they would be stateless.

As an interesting (though irrelevant) contrast, even though at the time of birth of my daughter I had only been a non-immigrant foreign worker in Mexico (an equivalent of H1-B non-immigrant visa in the US) for about 2 years, once she was born I could immediately apply for the citizenship and it took me only about a year and a half to be formally naturalized as a Mexican (without ever having been a legal non-citizen immigrant in the country).  There are countries with more relaxed laws!

Of course, one can take the opposite extreme. In Switzerland even a third-generation Swiss-born individual has to apply for naturalization after at least some 20 years of residence and have his/her name put on the popular ballot in his/her canton. They actually vote for every single naturalization (and much of the time they reject)! And in places like Korea and Japan naturalization is all but impossible (there's been some relaxation in Japan, but very minor), even after many generations in the country.  And in Israel, not only is a child of legal foreign workers an illegal immigrant at birth, but his/her existence is grounds for revoking the parents' work visa, instantly turning them into illegal immigrants!

Just keep in mind, that in Japan, for instance, the result of their immigration practice has been a large number of North Korean-citizen residents, who go to North-Korea financed schools and express wholehearted allegiance to the Dear Leader.  These people (Japanese-resident in 3-4 generations - since before WWII) would have long been completely assimilated, but for the rejection by the country of their birth.

[Emsworth]

Indians not taxed are, in spite of section 1, still excluded from the count, presumably for the reason that they are not citizens. Their full exclusion from the basis of representation seems completely inconsistent with the idea that they are citizens; all other persons are now included.

Yet Indians, not taxed, are born in the United States.

Indeed, that is certainly true. Children of untaxed Indian tribes have been held to be subject to the jurisdiction of their tribes, to whom they owed allegiance. They are not subject to the jurisdiction of the federal government, as they do not owe "direct and immediate allegiance" (Elk v. Wilkins).

Untaxed Indian tribes were deemed to stand "in a peculiar relation to the national government, unknown to the common law"; hence, the common law rule of allegiance and jurisdiction does not directly apply to them. However, aliens, whether temporarily in the country or not, were indeed contemplated by the common law; hence, the common law rule of allegiance and jurisdiction does apply.

[A18]

Slaughterhouse Cases, 83 U.S. 36 (1872)

The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

Elk v. Wilkins, which you cite, seems to reaffirm that holding: The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.

I think it is fair to say that citizens of a foreign state owe allegiance to a foreign power every bit as much as Indians.

[ag]

Once again, children of citizens of many countries born outside those countries are not citizens of the same at birth. If they are not US citizens, then, unless they (or their parents) actively petition for naturalization are stateless, citizens of no country whatsoever. Clearly, not being citizens of any other country, they owe allegiance to none.

Again, it is irrelevant since US courts have consistently ruled that from the standpoint of the US law their only allegiance is to the US, whatever some other country says.

[Emsworth]

Slaughterhouse Cases, 83 U.S. 36 (1872)

The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

You are relying on the Slaughterhouse Cases? That decision was a farce.

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No, I respectfully suggest that it does not. A child born in the United States "ow[es] no allegiance to any alien power," because a child born in the United States is not a citizen or subject of any alien power.

If you accept that "subject to the jurisdiction thereof" is a common law concept, then children of aliens born in the United States must be citizens.

[© tweed]

They way I read it, yes, I think it gives them citizenship.

[A18]

You are relying on the Slaughterhouse Cases? That decision was a farce.

A more careful reading of the opinion leads me to disagree. The majority in that case simply did not do what it is accused of having done. Rather, the Court simply refused to make up a right to pursue a "legitimate occupation" out of thin air.

I would go as far as to say... that it would be perfectly consistent with the precedent established in the Slaughterhouse Cases for the Court to rule that the first eight amendments of the Bill of Rights were, in their entirety, incorporated against state laws by the Privileges or Immunities Clause of the Fourteenth Amendment.

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If Indian tribes are an exception to the common law understanding, why not something more deeply rooted in American law?

[Emsworth]

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If Indian tribes are an exception to the common law understanding, why not something more deeply rooted in American law?

Indian tribes are an exception because they were unknown to the common law. Aliens, however, were always known to the common law, and were specifically covered.

Furthermore, the exclusion of children of aliens is not necessarily deeply rooted in American law. Numerous pre-14th Amendment decisions declared that the common law rule held in the United States.

[A18]

How are Indians any different from aliens, except that they are subject to another 'nation'?

Aliens subject to a foreign power were apparently not known to the common law, as it would be plainly absurd to say that a citizen of another state is not subject to a foreign power.

It has long been held that a person can lose his citizenship for reasons including service in a foreign military and naturalization as a citizen of another state.

[Emsworth]

How are Indians any different from aliens, except that they are subject to another 'nation'?

Untaxed Indian tribes stand in "peculiar relation to the national government, unknown to the common law." This peculiar relation is implicitly acknowledged by the Constitution. The same cannot be said of other aliens.

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In those cases, the person in question has voluntarily renounced his allegiance to the United States. Therefore, he is no longer subject to the jurisdiction of the United States, and is no longer a citizen.

(I would say, incidentally, that the parents can voluntarily renounce allegiance to the U.S. on behalf of the child, and choose instead citizenship of their home country. But in the absence of such renunciation, the child owes natural allegiance to the United States, and is a citizen.)