The constitutional legitimacy of granting birthright citizenship to a child born to an illegal entrant while on American soil involves the meaning of " . . . and subject to the jurisdiction thereof . . . as found in the 14th Amendment.
Let us examine the stated meaning of “and subject to the jurisdiction thereof” from voices of acknowledged authority.
John A. Bingham, considered the architect of the 14th Amendment, remarks on the intended meaning of “jurisdiction” as it appears in the amendment:
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” Congressional Globe, 39th Congress (March 9th,1866)
On May 30th, of the 14th Amendment debates Senator Trumbull states:
“The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” . . . “What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means….“It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is “subject to the jurisdiction of the United States” … It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens." see: Cong. Globe 39th Congress, page 2893, 1st and 2nd columns
Mr. JOHNSON then rises to say: “…there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question….there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State… “Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power–for that, no doubt, is the meaning of the committee who have brought the matter before us–shall be considered as citizens of the United States.” …he then continues “…the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”.”___ Cong. Globe. Page 2893 2nd dolumn, halfway down
Mr. HOWARD later follows up with regard to the meaning of “jurisdiction” by saying: “I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” SEE: Cong.Globe, 39th Congress, page 2895, middle column
And in IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872) with regard to the phrase “subject to the jurisdiction thereof” the SCOTUS emphatically states:
“That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
And then in 1884, the Supreme Court once again echoes the intentions for which “and subject to the jurisdiction thereof” was written into the 14th Amendment:
'This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States,but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”___ Elk v. Wilkins, 112 U.S. 101 (1884)
And how may an alien who has entered the United States nullify their allegiance to their home country and submit themselves to the complete jurisdiction of the United States within them meaning of the 14th Amendment, so a child born to such a person becomes a citizen of the United States upon birth?
By taking the following Oath Of Allegiance as prescribed under our law.
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen;
that I will support and defend the Constitution and the laws of the United States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same;
that I will bear arms on behalf of the United States when required by the law;
that I will perform noncombatant service in the Armed Forces of the United States when required by the law;
that I will perform work of national importance under civilian direction when required by the law; and
that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God”
By this oath an alien becomes “subject to the jurisdiction” of the United States within the meaning of the 14th Amendment and a baby born to such an individual while on American soil would then be a citizen of the US because its mother owes her allegiance to the United States, may be required to serve in the Armed Forces of the United States, and is therefore subject to the complete jurisdiction of the United States within the meaning of the 14th Amendment!
Finally, in the case Wong Kim Ark, (1898) the facts stated in Wong Kim Ark confirm,
(1)Wong Kim Ark’s parents were in our country legally;
(2) had been settled in American for quite some time;
(3) the parents had a permanent domicile and residence in the United States;
(4) they were carrying on a lawful business;
(5) and the parents were not employed in any diplomatic or official capacity under the emperor of China at the time of Wong Kim Ark’s birth.
After the above facts were established by the Court, Justice Gray then stated with regard to Wong Kim Ark’s question of citizenship:
For the reasons above stated, the court was of the opinion that the question must be answered in the affirmative.
As pointed out by the Court, there are specific requirements which must be met for a child born to a foreign national while on American soil to be blessed with citizenship upon birth.
Additionally, is must always be remembered that our Supreme Court has never addressed the question of citizenship being bestowed upon a child born on U.S. soil to an alien who has entered our country illegally. The Wong case obviously confirms if specific requirements are not met, the answer is a resounding NO.
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)
