- The original public meaning of the Fourteenth Amendment does not mandate nearly so broad an application of birthright citizenship as U.S. immigration policy bestows today.
- Immigrant aliens owe no allegiance to the United States that is sufficiently unqualified to render their U.S.-born children citizens.
- U.S.-born children of illegal aliens are not entitled to citizenship by virtue of their birth on U.S. soil.
For generations, the U.S. government has abided by a policy of treating essentially every child born on U.S. soil as a citizen, a policy known colloquially as "birthright citizenship".
Brewing underneath the surface, however, has been a robust dissenting view, which holds that the U.S.-born children of illegal aliens are not entitled as a matter of constitutional law to United States citizenship by virtue of their birth on U.S. soil.
The meaning of each constitutional provision is the same today as it was at the time of its adoption, and this original meaning constrains judicial practice.
In the immediate aftermath of the Civil War, there was a pervasive and fundamental concern regarding the systematic denial of civil rights by DEMOCRAT-infested southern states to freedmen. This concern culminated in the Civil Rights Act of 1866.
The Fourteenth Amendment was the constitutionalization of the protections and rights afforded in the 1866 Civil Rights Act.
The 39th Congress that drafted and both the Civil Rights Act of 1866 and the Fourteenth Amendment had a distinct understanding of what it meant to be “subject to the jurisdiction of the United States” for purposes of birthright citizenship.
There are two distinct ways in which a person could be subject to the jurisdiction of the United States. Only one of them—complete jurisdiction on par with that experienced by current citizens—was sufficient for purposes of birthright citizenship. An individual may be subject to some level of United States jurisdiction without his or her child being entitled to birthright citizenship. Whether a person was subject to the complete jurisdiction of the United States is a question of permanent, undivided allegiance.
Today, advocates of universal birthright citizenship routinely claim that everyone who must obey U.S. law and pay U.S. taxes is “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause.
They further argue that this is because the 39th Congress formally adopted the English common law principle of jus soli—that is, citizenship by virtue of birth on the land. This argument fails because the American Revolution was grounded in a rejection of common-law jus soli and its mandate of perpetual allegiance to the Crown.
Congress settled on language including only those born in the United States and not subject to any foreign power.
The distinction between the two levels of jurisdiction underscores the broader connection between the 1866 Civil Rights Act and the Fourteenth Amendment and evidences a logical conclusion that Congress understood the amendment’s jurisdictional element to coincide with the act’s element of subjection to a foreign power.
The Civil Rights Act of 1866 and the Fourteenth Amendment mean the same thing: A person who is subject to a foreign power under the Civil Rights Act is not subject to the complete jurisdiction of the United States under the amendment, while a person who is subject to the complete jurisdiction of the United States under the amendment is not subject to any foreign power under the Civil Rights Act.
It is unmistakable that Congress considered a person to be subject to the “complete” jurisdiction of the United States for purposes of citizenship only if that person did not simultaneously owe allegiance to another sovereign such that he or she was “subject to a foreign power.” In this way, jurisdiction and allegiance are inextricably and intentionally tied together and provide a framework for determining the confines of birthright citizenship.
In 1881, contemporaneous scholar Alexander Porter Morse similarly reasoned that the U.S.-born children of aliens who are temporarily in the United States or who otherwise continue to recognize an obedience to a foreign sovereign are not U.S. citizens by birth. This is because the children are invested with the national character of their parents, who “are subject to the jurisdiction of the United States only to a limited degree.” Of specific importance to Morse was the fact that these alien parents do not obtain political and military rights in the United States but instead retain them in their respective native countries.
How, then, did United States v. Wong Kim Ark become a rallying cry for advocates of universal birthright citizenship, who claim that the decision cemented the principle of citizenship by birth regardless of the legal status of the parents? The answer lies in the reasoning used by the majority to reach that conclusion and in how that reasoning has been interpreted by modern scholars.
the majority opinion consists of a significant number of pages detailing what the Justices perceived to be the continued use of English common-law principles for defining citizenship in the United States post-Revolution. In the Court’s own words, “the same rule of [jus soli] was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”
Is this the correct or most reasonable way to understand the majority opinion? The Court’s analysis is in many respects an homage to the English common law of jus soli. There is, however, a much more reasonable interpretation of Wong Kim Ark.
Wong Kim Ark was fundamentally about equal treatment and fairness before the law without regard to race or national origin.
To the extent that the Wong Kim Ark majority appears to base its decision on an assumption that true English common-law jus soli continued to exist in the United States after the American Revolution, such a conclusion directly contradicts history. The American Revolution was a effective “casting off” of jus soli and its mandated perpetual allegiance in favor of a consent-based compact theory of government. The two principles are fundamentally opposed to each other.
Common-law jus soli was an outgrowth of feudalism and acted as a philosophical defense of the divine right of kings. According to the renowned common-law jurists Sir William Blackstone and Sir Edward Coke, jus soli bound men in “natural allegiance” to the sovereign over whatever geographical kingdom they happened to be born within, and this allegiance was perpetual.
This "natural and perpetual allegiance" is simply incompatible with the principles underlying the American Revolution.
In fact, jus soli’s perpetual allegiance would have made the Revolution philosophically impossible, because the very existence of the United States as a sovereign nation necessitated severing ties of “natural allegiance” to King George III.
Importantly, the disdain for common-law principles related to citizenship and nationality was clearly seen in the debates over the passage of the Expatriation Act of 1868, which show that Congress’s general attitude on the heels of the Fourteenth Amendment was to categorically reject jus soli’s “accident of birth” and perpetual allegiance as the basis for citizenship.
Moreover, the Fourteenth Amendment was an effort to fully implement the principles of the Revolution, which had not been possible under the specter of slavery. The Dred Scott majority’s primary flaw was not that it utilized compact theory, but that it so painfully mishandled compact theory and failed to view it in light of the other natural rights of man.
Certainly, America’s immigration and naturalization laws have changed dramatically in the past century, and the modern framework no longer risks the creation of de facto classes of permanent resident aliens perpetually excluded from naturalization because of national origin or race. Today, the government recognizes three general categories of foreign nationals present in the United States: (1) immigrant aliens, also known as permanent resident aliens or “green card holders”; (2) nonimmigrant aliens whose permitted length of stay is dependent upon the type of visa they acquire; and (3) illegal aliens.
Tt should be relatively easy to determine which of these three modern categories of aliens would qualify as being “subject to the jurisdiction of the United States” under the original meaning of the term. The Citizenship Clause’s original meaning necessitates that a person be subject to the “complete jurisdiction” of the United States by being subject to “the same jurisdiction in extent and quality as applies to every citizen of the United States.”
https://www.heritage.org/immigration/report/the-citizenship-clauses-original-meaning-and-what-it-means-today?_ga=2.218663321.1407177850.1558712590-1688691090.1558712590