The 14th Amendment & Birthright Citizenship

[OlDawg]

What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately, with the news that several states—including Pennsylvania, Arizona, Oklahoma, Georgia, and South Carolina—may launch efforts to deny automatic citizenship to such children.

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “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, and complete political jurisdiction, which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

Of course, the judges in that case were strongly influenced by the fact that there were discriminatory laws in place at that time that restricted Chinese immigration, a situation that does not exist today.

The court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal aliens—only permanent, legal residents.

It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations. They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents. The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country.

Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.”

The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

 

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[tvc184]

17 hours ago, Big girl said:

Wasnt Trump's dad an anchor baby?

Only if his mother was an illegal alien.

 Did she sneak into this country? 

[baddog]

Libs don’t care one bit about legal immigration, so they need to stop flashing our constitution in our faces. Being an American is special. Not everyone can be an American. Our constitution IS a special document which is what makes us Americans. If you hand over our precious rights to anyone who comes here, it takes away our freedoms as Americans, rights that our kinfolk fought and died defending so that we would enjoy those freedoms, not hand them over to invading enemies. Whining over illegals inheriting our American rights simply by invading our country is ludicrous. Saying they are coming here to better themselves AND ASSIMILATE into society is the biggest lie the libs have going. 

[Big girl]

12 hours ago, tvc184 said:

Only if his mother was an illegal alien.

 Did she sneak into this country? 

She wasnt born here. I dont know ifvshe was illegal

[Big girl]

On 7/25/2025 at 3:41 PM, OlDawg said:

What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately, with the news that several states—including Pennsylvania, Arizona, Oklahoma, Georgia, and South Carolina—may launch efforts to deny automatic citizenship to such children.

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “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, and complete political jurisdiction, which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

Of course, the judges in that case were strongly influenced by the fact that there were discriminatory laws in place at that time that restricted Chinese immigration, a situation that does not exist today.

The court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal aliens—only permanent, legal residents.

It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations. They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents. The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country.

Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.”

The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

 

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To be "subject to a jurisdiction" generally means that a person or entity is under the authority and control of a particular legal system, meaning that laws and regulations of that jurisdiction apply to them. This applies to individuals, corporations, and other entities within a specific territory or subject to its laws due to citizenship, residency, or other legal ties. 

[tvc184]

12 hours ago, Big girl said:

To be "subject to a jurisdiction" generally means that a person or entity is under the authority and control of a particular legal system, meaning that laws and regulations of that jurisdiction apply to them. This applies to individuals, corporations, and other entities within a specific territory or subject to its laws due to citizenship, residency, or other legal ties. 

The Supreme Court has a different opinion. 

[OlDawg]

14 hours ago, Big girl said:

To be "subject to a jurisdiction" generally means that a person or entity is under the authority and control of a particular legal system, meaning that laws and regulations of that jurisdiction apply to them. This applies to individuals, corporations, and other entities within a specific territory or subject to its laws due to citizenship, residency, or other legal ties. 

Pretty cool to still have a readable dictionary that's over 150 years old.

[OlDawg]

3 hours ago, tvc184 said:

The Supreme Court has a different opinion. 

Multiple times.

[Big girl]

On 7/27/2025 at 7:31 AM, tvc184 said:

The Supreme Court has a different opinion. 

They haven't ruled on it, yet.

[tvc184]

1 hour ago, Big girl said:

They haven't ruled on it, yet.

Sure they have and more than once. You just don’t like the answer. 

 They might overturn or clarify earlier rulings but they most definitely have ruled.

 I have posted this more than once but in Elk v  Wilkins the Supreme Court ruled that a Native American Indian born in Montana on US soil, was not an American citizen.

Even though born in the US, Elk was not a citizen because he was a Native American and owed his allegiance to another country, that of the Winnebago Indians. Elk later moved to Nebraska and registered to vote. He was denied as he was not a US citizen.

Elk surd claiming that because of the Fourteenth Amendment and he was born on US soil (as a Native American no less), he was a citizen. Elk even renounced any allegiance to the Winnebago Nation. The Supreme Court said that it doesn’t matter, you are not an American citizen.

It was such a landmark ruling that 40 years later, the US Congress enacted a federal law, under their constitutional authority, giving American Indians citizenship at birth. The Fourteenth Amendment did not so it took an act of Congress to make Native Americans, Americans.

Even today Native Americans have sovereignty on reservations as independent nations. They can have their own laws and courts outside control of US law and hold jurisdiction over Native Americans who are on reservation land.

In Wong Kim Ark the Supreme Court ruled that a child born on US soil to two Chinese citizens was an American at birth but his parents were lawfully in the US.

So while you have the right not to agree with the Supreme Court, they most definitely have ruled.

Just like Plessy v. Ferguson which upheld separate but equal laws on race was later overturned by Brown v Board of Education and Roe v. Wade upholding abortion rights was later overturned by Dobbs v. Jackson WHO, the Supreme Court could in an upcoming decision overturn Elk and clarify Wong Kim Ark  

I made exactly that prediction in this forum weeks ago. The Supreme Court would take the case and essentially modify Wong Kim Ark and declare a person born on US soil has birthright citizenship.

To say that the Supreme Court hasn’t ruled is simply not correct.