Copyright 2003, by Mark Edward Vande Pol
This article was originally posted on FreeRepublic.com as part of a longer discussion. You can find it here.
Having researched the 14th Amendment at some length, I have come to develop one serious distaste for it, irrespective of its secret construction, hasty passage, and coerced ratification. From equal protection for fictitious persons to "Selective Incorporation" this one Amendment has done more mischief to the rest of the Constitution than any other change in its history.
This article concerns the now infamous Citizenship Clause as regards supposedly conferring birthright citizenship to the children of illegal aliens:
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.
Most people regard this clause as self-explanitory, believing that to be "subject to the jurisdiction," all one has to do is to be within the territory of the United States. Thus they conclude that children of illegal aliens are obviously US citizens.
Nothing could be further from the truth.
If I'm driving in Britain, I have to obey their traffic laws because I am WITHIN British jurisdiction.
That doesn't make me a British SUBJECT. Now, lest you think there is a difference between that usage of the word
"subject" and the one in the Citizenship Clause, let's consult the
Bouvier Law Dictionary 1856 edition, as it is the one most
commonly used at the time the 14th Amendment was drafted and ratified. In this instance, the contextual usage of
"subject" in the definition is
2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.
Thus the seemingly "obvious" reading of the Citizenship Clause isn't at all correct, simply because illegal aliens are not "subject" to the jurisdiction as defined by term because they are not members of the United States, owing their allegiances to foreign powers instead. Nor was there any other legal definition of the word "subject" in popular use at that time. So, given the history of misinterpretation and ambiguity on the subject, perhaps the original intent of the clause does bear closer examination.
As written and ratified, the 14th Amendment was never intended to grant citizenship to the children of foreign subjects, whether they were here legally or not. Senator Jacob Howard, a co-author of the Citizenship Clause offered his interpretation in 1866:
"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of
natural law and national law a citizen of the United States.
Note the ambiguity in this statement: Does it mean 'all aliens' or only ambassadors. This question was addressed in the first Supreme Court interpretation of the 14th Amendment on record, The Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC). The author of the majority opinion was a contemporary of those who drafted and debated the Amendment. The following text is from the majority opinion written by the Chief Justice:
MILLER, J., Opinion of the Court
"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."
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have
been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard
to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within
the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish
the citizenship of the negro can admit of no doubt.
Justice Miller is clearly writng about this attribute as if said original intent was a fact known to him. Both Senator Howard and Justice Miller recognized that the 14th Amendment citizenship clause would not apply to children born from any one of three groups: foreign visitors (whether citizen or subject), embassy employees, or foreign diplomats (under a special protected status who will leave upon the expiration of their term).
Returning to the Amendment itself, Section 5 cedes control of implementing its provisions back to Congress, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.". So, because the Constitution is a limiting document, the wording of the 14th Amendment citizenship clause means that no new categories can be invented outside those in the Amendment, such as children of visiting or resident aliens; i.e., they may not grant birthright citizenship to the children of illegals, nor the equivalent.
Justice Miller's aside in the Slaughterhouse Cases is not the holding in the case, and therefore has no compulsory value as a ruling. However, the majority opinion, because it was contemporaneous with the ratification of the 14th Amendment, records the understanding of those who drafted, passed, and ratified the Amendment. It therefore does have value in constructing an originalist interpretation.
Still, Miller's statement is mere dicta, an assertion having little to nothing to do with the case under consideration.
Dicta is normally not considered to be equivalent to precedent. Would that such were really true. The fact is that when
the Courts want to use it as such, they do. Consider the consequences of
Santa Clara v. Southern Pacific (118 U.S. 394 (1886)).
US v. Wong Kim Ark, 169 U.S. 649 (1898) threw out Miller's opinion saying effectively that it didn't matter because the majority was going to redefine the phrase, "subject to the jurisdiction," as they saw fit, which is consistent with the behavior of the corporate attorneys who dominated the Supreme Court in those days.
So let's take a look at just who these concurring legal geniuses on the Court really were in US v. Wong Kim Ark:
We have Rufus Peckham, infamous inventor of the now-discredited term, "substantive due process," used to invalidate a state statute regulating the hours of bakery employees.
We have George Shiras, a prominent (drum roll please) railroad lawyer with no prior judicial experience and friend to corporate railroad barons with a rather keen interest in retaining Chinese coolies. Kinda reminds you of something rather more contemporary, doesn't it?
We have Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.
We have Yalie David Brewer, founder of the American Society of International Law, peace advocate, and judicial activist toward using the court to supersede State laws.
We have Yalie Henry Brown, author of Plessy v. Ferguson!!!, and a huge fan of the use of Admiralty Law as a regulatory means (even though he hired a substitute to serve in the military for him in the Civil War).
The The dissenting opinion to this travesty was vigorous, a work that rings with predictions of the consequences we see today. It was written by Chief Justice Melville Fuller, a big fan of Thomas Cooleys Treatise on Constitutional Limitations and a champion of individual property rights. Joining him was John Marshall Harlan, who had the temerity to oppose broad interpretation of the Commerce Clause and opposed Plessy v. Ferguson. (Justice McKenna did not participate as he was newly confirmed.)
Fuller's dissent began with simple logic, which should have been enough to collapse the opposition were they not committed to corrupted ends:
If the conclusion of the majority opinion is correct,
It is an admirably clear construction of the modern consequences of the ruling. Chief Justice Fuller goes on with this elegant argument, equating birthright US citizenship to alien parents with the confiscation of foreign children born in England by the British crown:
The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that '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, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.' Cockb. Nat. 7.
The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the crown, but permanent and indissoluble, and not to be canceled by any change of time or place or circumstances.
It's pretty strong language for a Supreme Court Justice. He has good reason. Citizenship appertains exclusively to
the allegiance of parentage, else the choices and preferences of those parents as legitimately exercised under law,
including changing citizenship by naturalization, is not something so easily superseded
Twiss, in his work on the Law of Nations, says that 'natural allegiance, or the obligation of perpetual obedience to the government of a country, wherein a man may happen to have been born, which he cannot forfeit or cancel or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law.' Volume 1, p. 231.
Its really quite an opinion; I recommend that everyone read it. I know you probably thought that I was being more than a bit hyperbolic with my characterization of the constrasting opinions, but the difference is really that great. Fuller goes on to cite Story, Taney, and any number of opinions from within the Department of State, proving that Gray et al. could in no way honestly be citing historical precedent within the US as regards common law in this instance. He includes citation to the Federal Convention as well, indicating that the issue was raised and disposed in opposition of the majority opinion.
When hes done with court and general pre-war precedent regarding citizenship, then Fuller looks to the essential precedent to the 14th Amendment, the Civil Rights Act of 1866, passed a mere two months before the drafting of the Amendment:
The civil rights act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided 'that all persons born in the United States, and not subject to any foreign power, excluding Indians [169 U.S. 649, 720] not taxed, are hereby declared to be citizens of the United States.' And this was re-enacted June 22, 1874, in the Revised Statutes (section 1992).
The words 'not subject to any foreign power' do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that, nevertheless, they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens. That this disparity between the Civil Rights Act and the 14th Amendment exists, is strong indication of perfidy in construction of the latter.
Additionally, citizens of a foreign country are usually expressly prohibited from taking other citizenship without having renounced their native allegiance. It is patently illogical that the standards applied to children would be different than that applied to their parents.
Fuller completed his treatise addressing treaties between China and the US as well.
As to Mr. Howard's oratory in chambers (as opposed to written work), whether it should have included an "OR, " frankly, that anyone would find it necessary to make a Constitutional distinction between the children of diplomats and those of invaders and travellers is to render our treaty understandings with those countries and their jurisdiction over their citizens laughable. It is to show NO RESPECT for any other nation on earth and flies in the face of our nation's understanding of equal protection under the law.