Bob Beauprez Declares War on Snowboarders

This IS NOT my original work, but it is a (highly disorganized and barely proofed) outline I pass around when people start claiming birthright citizenship isn't in the Constitution.

I. Legal

a. Text is clear “As the supreme court has noted, the text is designed to “allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.”

i. Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

ii. The text of the Citizenship Clause thus refers to “[a]ll persons born … within the United States” and not all persons born of parents born within the United States

iii. “Subject to the jurisdiction of” the United States is not the same as “subject to the consent of” the United States Congress.

iv. This presumption is confirmed by the use of the word 'jurisdiction,' in the last clause of the same section of the fourteenth amendment, which forbids any state to 'deny to any person within its jurisdiction the equal protection of the laws.' It is impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence, as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the states of the Union are not 'subject to the jurisdiction of the United States.'

b. Supreme Court Precedent supports the current interpretation

i. U.S. v. Wong Kim Ark, 169 U.S. 649, 697 (1898)

1. Born not under jurisdiction was limited to the children of diplomats, indians, and invading soldiers

2. “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.”

3. The Supreme Court pointed specifically to the following exchange: In the debates over the contemporaneous 1866 Civil Rights act, discussion over that exact same wording's meaning came up.
Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’

Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the
effect of naturalizing the children of Chinese and Gypsies, born in this country?’ Mr. Trumbull answered, ‘Undoubtedly;’ and asked, ‘Is not the child born in this country of German parents a citizen?’ Mr. Cowan replied, ‘The children of German parents are citizens; but Germans are not Chinese.’ Mr. Trumbull rejoined, ‘The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.’ Mr. Reverdy Johnson suggested that the words, ‘without
distinction of color,’ should be omitted as unnecessary; and said: ‘The amendment, as it stands, is that all persons born in the United States, and not subject to a foreign power, shall, by virtue of birth, be citizens. To that I am willing to consent; and that comprehends all persons, without any reference to race or color, who may be so born.’ And Mr.
Trumbull agreed that striking out those words would make no difference in the meaning, but thought it better that they should be retained, to remove all possible doubt.

4. The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance **474 and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory

c. Legislative History Surrounding Passage Supports the Current Interpretation

i. Before the 14th Amd. the naturalization acts of the United States applied the words 'under the jurisdiction of the United States' to aliens residing here before they had taken an oath to support the constitution of the United States, or had renounced allegiance *687 to a foreign government.

1. Acts March 26, 1790, c. 3 (1 Stat. 103); January 29, 1795, c. 20, § 1 (1 Stat. 414); June 18, 1798, c. 54, §§ 1, 6 (1 Stat. 566, 568); April 14, 1802, c. 28, § 1 (2 Stat. 153); March 22, 1816, c. 32, § 1 (3 Stat. 258); May 24, 1828, c. 116, § 2 (4 Stat. 310); Rev. St. § 2165. And, from 1795, the provisions of those acts, which granted citizenship to foreign-born children of American parents, described such children as 'born out of the limits and jurisdiction of the United States.' Acts Jan. 29, 1795, c. 20, § 3 (1 Stat. 415); April 14, 1802, c. 28, § 4 (2 Stat. 155); February 10, 1855, c. 71 (10 Stat. 604); Rev. St. §§ 1993, 2172.

2. Thus congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as 'under the jurisdiction of the United States,' and American parents residing abroad as 'out of the jurisdiction of the United States.'

ii. Opponents of birthright citizenship also cite a statement by Senator Howard, who introduced the language of the Citizenship Clause, that the amendment would “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.”45

1. But if Howard was intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so.

2. The language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.

iii. Senator Conness's remarks during the debate: "The proposition before us, I will say Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation." CONG. GLOBE, 39th Cong., 1st Sess. 2891 (1866).

iv. See 1866 Civil Rights Act listed above

v. Secretary of State Fish in 1871 said in writing to Mr. Marsh, the American minister to Italy: ‘The fourteenth amendment to the constitution declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ This is simply an affirmance of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification ‘and subject to the jurisdiction thereof was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.’ 2 Whart. Int. Dig. p. 394.

vi. Opinion of Attorney General Hoar in 1869: “The rule of the common law I understand to be that a person ‘born in a strange country, under the obedience of a strange prince or country, is an alien’ (Co. Litt. 128b), and that every person owes allegiance to the country of his birth' (13 Ops. Attys. Gen. U. S. 89-91).

1. Issue with “under the obedience,” but see other sections

d. Problems with the Consent theory

i. Justice Holmes gave the standard explanation that “[j]urisdiction is power,” by which he meant that the willingness of a party to be hailed before a court is irrelevant.

1. For example, it would be strange if a criminal defendant could assert a defense based on his lack of consent to the State's prosecutorial authority.

2. Immigrants have to register for the selective service

3. Likewise, illegal aliens in deportation proceedings would not get far by asserting that the tribunal lacked jurisdiction because they did not consent.

4. This does not mean that an alternative reading is incorrect. It does indicate, however, that Schuck and Smith (main originators of theory) must rely on legislative history, rather than on the ordinary meaning of the text, to make their case.

ii. A common refrain among critics of the current constitutional custom is that there were no illegal immigrants when the Citizenship Clause was written; hence, the drafters did not consider the problem.

1. Wong Kim Supreme Court decision isn’t limited to this except through an overly broad reading of unnecessary dicta

2. While it is true that no general immigration statute was enacted until after Reconstruction, Gerald L. Neuman points out that the immigration (or importation) of slaves was barred long before the Civil War. Nonetheless, illegal smuggling of slaves was widespread and tens of thousands entered the country in this fashion. Presumably, under a mutual consent theory of birthright citizenship, the children of these illegal slaves could not be citizens. Since an interpretation of the Fourteenth Amendment that does not make all African Americans citizens is patently absurd, the reciprocal allegiance theory appears inadequate.