Birthright citizenship

Here's a question:

Why do folks care about what was likely the intention of some dude who has been dead for 200 years?

The justices seemed pretty skeptical, and when Gorsuch questioned the solicitor general about Native Americans being included as Citizens, Trump left in a huff. Whether he left because he was angry that Gorsuch had dared challenge Trump's solicitor general or whether he just saw things going in the right, as in the correct and moral, direction, I'm not sure.

Fantine said:

Trump left in a huff. Whether he left because he was angry that Gorsuch had dared challenge Trump's solicitor general or whether he just saw things going in the right, as in the correct and moral, direction, I'm not sure.

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Depends, he probably just needed a chance of venue.

Aryeh Jay said:

Depends, he probably just needed a chance of venue.

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I don’t want there to be a subtle double entendre there.

ThatRobGuy said:

It's been a hot topic for a few years now, with one political faction saying "the language is clear, anyone born on US soil is a US citizen", and another faction saying that's not the case.

While courts leverage interpretation for such matters, I think it's worth considering other statements from principle authors of that amendment in figuring out context and intent

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I'll keep digging to see if I can find a more "clear to read version" for folks.

Senator Howard was a leading author of that amendment (and sorry if this is hard to read, this is the best I can get the resolution...the Library of Congress version isn't any easier to read unfortunately)

But his statements seem to indicate that the intent was centered around granting birthright citizenship to the children of freed former slaves (which makes sense, he was one of the top reconstructionists from the north at that time), but he mentioned excluding American Indians. (they didn't acquire official citizenship until the 1920's via a separate act of congress)

He argued that Native Americans, while born within the geographical limits of the United States, were "not fully subject to the jurisdiction thereof" in the way the amendment intended, because they owed allegiance to their tribes rather than directly to the United States government.


I think that calls into question the status quo bias of the notion that "14A guarantees that anyone born on US soil is automatically a citizen".

People say "the text is clear, broad birthright citizenship was the intent", but the words of one of the leading authors calls that into question.

If he suggested that it doesn't apply to Native Americans (who would've obviously had a much stronger claim to birthright citizenship than a person who snuck in post hoc, and had a baby while they were here), I think that calls in question the assumed premise that birthright citizenship broadly applies based on "the intent of the amendment"

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Why would the children not be "subject to the jurisdiction thereof", what sovereign tribe would they be part of? Would a child of two imported slaves not be "subject to the jurisdiction thereof", but instead some foreign tribe or other entity? In 1868 that could still happen I guess.

ThatRobGuy said:

That's the crux of the debate...

The author of 14A (based on other statements) seemed to indicate that the children of slaves was who that amendment was intended to protect...and specifically mentioned that it wasn't intended to cover the Native Americans.

With lines up with why Congress passed the Indian Citizenship Act of 1924.

If the common understanding of the intent of 14A was "well, obviously it covers everyone born on US soil, everyone knows that", then there wouldn't have been a need for the 1924 act, it would've been something argued through the courts on 14A grounds.

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What sovereign tribe would they be part of? Tourists were a uncommon thing in 1868 but not unheard of. If they had a child in the US, how was it solved back then? And how has it been viewed since then? This must have happened more or less continually since then.

ThatRobGuy said:

That's the crux of the debate...

The author of 14A (based on other statements) seemed to indicate that the children of slaves was who that amendment was intended to protect...and specifically mentioned that it wasn't intended to cover the Native Americans.

With lines up with why Congress passed the Indian Citizenship Act of 1924.

If the common understanding of the intent of 14A was "well, obviously it covers everyone born on US soil, everyone knows that", then there wouldn't have been a need for the 1924 act, it would've been something argued through the courts on 14A grounds.

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Native Americans born were not considered citizens precisely because of the clause "subject to US jurisdiction" - reservations are sovereign and not subject to US jurisdiction. So yes, Native Americans were a special case.

Stopped_lurking said:

What sovereign tribe would they be part of?

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It depends on which tribe they belonged to as the US government made separate treaties with different tribes. Could be Navaho, Mohawk, Pueblo to name a few.

Stopped_lurking said:

Tourists were a uncommon thing in 1868 but not unheard of. If they had a child in the US, how was it solved back then? And how has it been viewed since then? This must have happened more or less continually since then.

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If the child were born here, they were considered to have a right to citizenship but the parents could declare them citizens of their own country. Many people had dual citizenships (I think subject to not voting or serving in the military of the other country).

DaisyDay said:

It depends on which tribe they belonged to as the US government made separate treaties with different tribes. Could be Navaho, Mohawk, Pueblo to name a few.

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I realize I wrote it a bit ambiguous. What I wanted to know is what divided jurisdiction the children born in the US today would be under. The reason that Native Americans were excluded in the picture in the OP seems to be that they were not under the jurisdiction of the US. But children born in the US today are under the jurisdiction of the US, are they not?

DaisyDay said:

If the child were born here, they were considered to have a right to citizenship but the parents could declare them citizens of their own country. Many people had dual citizenships (I think subject to not voting or serving in the military of the other country).

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Thank you, that would have been my guess as well. It seems that the writers of the 14th amendment would have had ample opportunity to clarify how it they thought it should be interpreted.

ThatRobGuy said:

Native Americans gained citizenship with the Indian Citizenship Act of 1924.

Which, the very fact that act was necessary calls into question the notion that "14A means that anyone born on US soil is a citizen".

Because if that were true, and that was the well-understood and accepted premise of what 14A was interpreted to have meant to cover, then there wouldn't have been a need for the Act in 1924.

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The issue with Native Americans is that they were viewed as being subject to the laws of their tribe, that the reservations they lived on were tribal territory, not US territory, where they were only subject to tribal law and not the laws of the United States. We can quibble, in hindsight, if this were actually true but this is the reason they were not covered under the 14th Amendment, they literally were deemed not to be "subject to the jurisdiction" of the US, to include not being required to pay US taxes.

While they do now have citizenship, they still retain this "dual citizenship" status and tribal law is enforced on reservations (yes, if you are on a reservation you can be charged for breaking tribal law). In fact, this was used recently in Oklahoma, where the Supreme Court decided (McGirt v Oklahoma) that Oklahoma law cannot be enforced on tribal members in certain parts of Oklahoma (I recall this being in Tulsa), because while there is no longer a recognized reservation, the previous reservation was never disestablished, therefore tribal members cannot be charged under Oklahoma law on those lands (the ruling applied to nine tribes) and they must be tried in a tribal court.

ThatRobGuy said:

So there are competing views here.

There's the broad reading of 14A, which is jus soli (common law principle of "right of the soil")
vs.
The intent of the author of 14A, which was that "subject to the jurisdiction thereof" was meant to mean complete political jurisdiction - meaning not owing allegiance to any foreign power (which was the position of Senator Howard)

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Let us be clear, the 14th Amendment was somewhat written by a committee -- a group of radical Republicans in Congress. The primary author is actually Rep. John Bingham of Ohio ,who wrote Section 1 which contains the jurisdiction clause. Jacob Howard was a Senator, who was part of the committee, and introduced the 14th Amendment in the Senate.

The issue is that this quote by Howard is cherry picked by people against birthright citizenship; to my knowledge he is the only member of the committee to make a comment like this. It was recognized, instead, that this would grant citizenship to all children born of immigrant (but not citizen) parents in the US.

If you go deeper into the history, Congress originally passed the Civil Rights Act of 1866, which among other things, granted citizenship in the clause, "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed". Notice the different phrasing, as this wording explicitly did not grant "birthright citizenship" -- if you had citizenship in another country you were subject to a foreign power. This committee decided they needed to pass the 14th Amendment, fearing that a later Congress may repeal the Civil Rights Act and they wanted to ensure it remained law.

When writing the 14th Amendment, Section 1, Bingham intentionally changed this line. This was a deliberate change to grant citizenship to children born in the US, so long as their parents were subject to US law (which we can somewhat infer was based on if the parents paid tax to the US). Because of the change in phrase, we can largely interpret the intent of Bingham (as the author, and even of the committee, for introducing it with the new phrase) -- if they hadn't intended for Birthright Citizenship they would have used the original phrase or one similar, where it excluded children born to citizens of other countries.

ThatRobGuy said:

There are other implications with the former as well.


The one I find particularly concerning is the birth tourism from China (California and New York start cracking down on it more recently), but from 2005-2017, there was a lot of it. Where women would go through these various shady "agencies" in order to come to the US to give birth, and then go back to China. All of those kids are US citizens by the former interpretation (despite only spending a few days here, and being raised in China for the rest of the time)... meaning, in theory, they could all request ballots and vote in our elections.

Obviously all of the current coverage of that is framed through a lens of trying to refute Trump's recent comments and zeroing in on all the things that can be "fact checked", but there was some more objective coverage from all of the reputable outlets back from 2012-2015 discussing the scope of the problem.

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To me, the answer is in what I just wrote, though it would require Congress (or even Trump through an Executive Order) to state that "Birthright Citizenship" only is granted if the parents pay US taxes -- which specifically would likely be if they pay income tax (since things like sales tax and such are not federal). This would still basically be in line with the original intent of the 14th Amendment and even many Supreme Court rulings (where it is about the Indians not being federally taxed) but prevent this "birth tourism" since the mothers would not have any type of residency in the US, and would not have paid US federal taxes.

It looks like the supreme court will reject this executive order. But I do wonder what their response would have been if it was an actual bill spelling out who qualifies for birthright citizenship, say anyone born of a US citizen or two legal residents of the USA.

ThatRobGuy said:

I think the "subject to the jurisdiction" bit is what needs to be precisely defined.

Because a broad read of "subject to the jurisdiction" can cast a pretty wide net.


For instance, when I went to Scotland, I was subject to the jurisdiction and the laws therein.

I had to follow the laws, and if I committed a crime in Scotland, I would be tried in a Scottish court and delivered Scottish justice. But none of that would confer citizenship.

I think most historians are in agreement that the 14A clause in question was, first and foremost, to address the status of former slaves and their children (and largely a response to the Dred Scott decision)

In that instance, they were exclusively subject to the US jurisdiction.

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But that same scenario reversed -- you were Scottish (a UK citizen), broke a law in the US, and went to prison then you also wouldn't become a US citizen. At the same time, children born in a country technically owe no foreign allegiance (at least while in their birth country), but are subject solely to the laws of the country they are born in -- which is the basic idea of "birthright citizenship."

Again, perhaps it should be narrowed a bit, such as requiring the non-citizens to explicitly do something, such as pay US taxes, to show they are subject to the laws of the US before their children born in the US can be granted "birthright citizenship." But this is a different debate, though my guess is that if Congress passed a law along these lines, it would be upheld as providing a clearer definition for "subject to the jurisdiction."

ThatRobGuy said:

9% of all new births in the US being to people who are either undocumented, or only have temporary status, and that birth being used as the pretext for extending citizenship (or permanent residency) to the parents and siblings on the basis of "we can't separate families" on the basis of a differing 14th amendment interpretation seems like something that needs to be hashed out.

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to put that in real numbers -


In 2023, there were 3,596,017 births registered in the United States - 9% = 323,641 were added as citizens - but they are not here alone - can't separate them - add mom and dad and that means 970,923

That is equivalent to adding a city the size of Ft. Worth Texas.

“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.”

This seems pretty straightforward, if you ask me. What is there to interpret here?