4 ms·

I wouldn't. The wording of the 14th Amendment is ambiguous and was arguably misinterpreted by the courts. "All persons born or naturalized in the United States

I wouldn't. The wording of the 14th Amendment is ambiguous and was arguably misinterpreted by the courts. "All persons born or naturalized in the United States, AND (capitalized for emphasis) subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way - the court is conservative and public sentiment has shifted.

proberts 2y ago
I still think it's extremely unlikely. In other immigration contexts, "subject to the jurisdiction thereof" has been interpreted to exclude only diplomats and those not subject to the laws of the U.S. even though they are in the U.S. So children born in the U.S. to diplomats aren't considered citizens at birth.
- willmadden 2y ago
  The same is true for people born into war zones not fully under US control. I still wouldn't write this off. All it takes is a compelling argument for a new interpretation of "and subject to the jurisdiction thereof". It's pretty easy to make a compelling argument. The 14th Amendment was intended to address the citizenship status of freed slaves and their descendants post-Civil War. It was not meant to apply to the children of immigrants, particularly those who were not legally present or had not pledged allegiance to the U.S. A stricter interpretation of "subject to the jurisdiction." means it should require complete, exclusive allegiance to the U.S., which might not apply to children of undocumented immigrants due to their parents' legal status or nationality. You could also argue that the current interpretation dilutes national sovereignty by automatically bestowing citizenship without a clear reciprocal pledge of allegiance from the parents. The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction. Finally, United States v. Wong Kim Ark was decided under different circumstances. The socio-political context has changed. This could be used to justify revisiting the original interpretation.
  - anigbrowl 2y ago
    Are you seriously suggesting that undocumented immigrants are immune from US jurisdiction in some respect? This sounds like a reverse version of the odd legal theories proffered by sovereign citizens as to why they should not be subject to judgements in US courts.
    - rayiner 2y ago
      What does “subject to the jurisdiction of” mean? Everyone seems to be equating that with diplomatic immunity, but that seems to arise from the state department’s historical interpretation of the term in determining citizenship of children of foreign diplomats. Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to incorporate English common law of citizenship. Maybe that’s true, but that’s not what the Court thought the term meant in the Slaughterhouse Cases two decades before that. Justice Harlan also had a well reasoned dissent in that case, noting that English common law on citizenship arose out of feudalism and wasn’t necessarily an appropriate source on the question. I think it’s unlikely this will get overturned, but it’s not a frivolous argument.
      - tptacek 2y ago
        Wong Kim Ark cites, at length, Marshall's discourse on jurisdiction in Schooner Exchange v McFaddon, which turns entirely on this question. It also notes the language change between the Civil Rights Act and the 14th Amendment, where the revision clarified precisely this issue. It's a frivolous argument. Would you like to put some money on this? I'd give you favorable odds at 7-2, assuming the court composition remains as it is now.
        rayiner 2y ago
        It’s not clear to me that “jurisdiction” is being used in the same context in the 14th amendment as in Schooner Exchange. Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.
pockmarked19 2y ago
Are you saying aliens are not subject to US jurisdiction while here? Like "sovereign citizens"? That's what it seems like you're saying.
- proberts 2y ago
  Diplomats (not all foreign nationals) and their families who remain subject to the laws of their own country.
  - pockmarked19 2y ago
    Thanks, that's interesting to know! Although my comment was addressed to willmadden, and I think they just do not know what jurisdiction means.
  - 77pt77 2y ago
    Those also have diplomatic immunity.
- tripletao 2y ago
  The distinction in the executive order is between "a United States citizen or lawful permanent resident" and everyone else, not just citizen vs. noncitizen or lawful vs. unlawful. As drafted, the children of other lawful immigrants (H-1, J-1, O-1, L-1, etc.) would also not receive birthright citizenship. I've quoted the exact language for the father. The language for the mother is different but seems almost equivalent, excluding "lawful but temporary" status. I don't expect this to be upheld. Many tech workers will be affected if it somehow is, though. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/ https://www.whitehouse.gov/presidential-actions/2025/01/prot...
dragonwriter 2y ago
> The wording of the 14th Amendment is ambiguous? It is only ambiguous read in a vacuum. Read in the comtext of the US legal tradition in which it was written and the way the prior English common law tradition was incorporated into that tradition, it is...rather unambiguous. (Most notably, its exactly how the Supreme Court had applied the principles of English common law involved in multiple citizenship cases before the 14th Amendment establishing a uniform Constitutional rule for birthright citizenship was drafted and ratified. ) > If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way. Sure, if they can get the court to ignore the clear meaning of “subject to the jurisdiction thereof” in the context in which it was written, it can go either way. But Wong Kim Ark isn't like Roe and the line of cases descended from it, its not controversial even within the kind of conservative legal tradition that dominates the court. The Trump Administration could probably get such a case before the Court if it really wanted to, but even this court I can’t see splitting more favorably to overturning the status quo on this point than 8-1 against.
- deeg 2y ago
  Before the bonkers immunity decision I would have agreed with this. Since then, though, I don't trust SCOTUS on any decision that involves conservative policy. This may come up sooner than expected; Trump has issued an EO attempting to nullify it: https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/ https://www.whitehouse.gov/presidential-actions/2025/01/prot...
  - rayiner 2y ago
    The president is obviously immune for official acts! You think Georgia should now be able to prosecute Biden for recklessly causing the death of Laken Riley? It’s not the Supreme Court’s fault that Jack Smith charged Trump based in part on his instructions to his own DOJ. A smart prosecutor would’ve written an indictment based purely on conduct that was obviously unofficial acts, which the Supreme Court held was not protected.
  - blindriver 2y ago
    There is nothing bonkers about it. Should Obama be subject to prosecution for murder for allowing the bombing of a US citizen in the Middle East? Or should he be immune because he was engaging in an official act as President to protect the US?
anigbrowl 2y ago
I am not an immigration lawyer, but I am very interested in immigration law and the effort to overturn this precedent in particular, an interest whch goes back more than 15 years; so I have done a lot of reading on this argument. The whole phrase about 'subject to the jurisdiction thereof' refers to the fact that foreign diplomats (and often, their families) are not subject to the jurisdiction of their countries of residence, a concept known as diplomatic immunity. This sometimes leads to people with diplomatic privileges avoiding legal consequences that would otherwise result in fines or custodial sentences, as in this recent case: https://en.wikipedia.org/wiki/Death_of_Harry_Dunn https://en.wikipedia.org/wiki/Death_of_Harry_Dunn Regular, not-diplomatic people of foreign origin who are in the US are subject to the jurisdiction of US courts like anyone else. I have never found any legal justification for the opposite view other than the intense desire of the proponent for things to be different. Usually people who want to sweep aside this precedent rely on an 18th century book called The Law of Nations by Swiss legal theorist Emer Vattel, which opts for a concept of de jure (naturalized) citizenship rather than jus soli (of the soil) citizenship as exists here and in some other countries. They argue that it was a very popular book in its day and that Washington, Jefferson, and other founders of the US had certainly read it. when asked why they didn't just write this into the Constitution you usually get a hand-wavey answer about how it was so obvious they didn't see any need (at best) or the person just stops responding or gets mad (at worst).
- tacostakohashi 2y ago
  Yep, it's pretty nonsensical. Presumably those that hold the view that children of undocumented immigrants born in the United States are not citizens also hold they view that they are immune to prosecution for crimes by the United States for the same reason, but they don't seem to talk about that much.
  - gnkyfrg 2y ago
    [dead]
- rayiner 2y ago
  The contrary view is based on dicta in the Slaughterhouse Cases, decided less than a decade after the 14th amendment: https://supreme.justia.com/cases/federal/us/83/36/ https://supreme.justia.com/cases/federal/us/83/36/ > 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. 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.
gnkyfrg 2y ago
[dead]

proberts 2y ago

I still think it's extremely unlikely. In other immigration contexts, "subject to the jurisdiction thereof" has been interpreted to exclude only diplomats and those not subject to the laws of the U.S. even though they are in the U.S. So children born in the U.S. to diplomats aren't considered citizens at birth.

willmadden 2y ago
The same is true for people born into war zones not fully under US control. I still wouldn't write this off. All it takes is a compelling argument for a new interpretation of "and subject to the jurisdiction thereof". It's pretty easy to make a compelling argument. The 14th Amendment was intended to address the citizenship status of freed slaves and their descendants post-Civil War. It was not meant to apply to the children of immigrants, particularly those who were not legally present or had not pledged allegiance to the U.S. A stricter interpretation of "subject to the jurisdiction." means it should require complete, exclusive allegiance to the U.S., which might not apply to children of undocumented immigrants due to their parents' legal status or nationality. You could also argue that the current interpretation dilutes national sovereignty by automatically bestowing citizenship without a clear reciprocal pledge of allegiance from the parents. The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction. Finally, United States v. Wong Kim Ark was decided under different circumstances. The socio-political context has changed. This could be used to justify revisiting the original interpretation.
- anigbrowl 2y ago
  Are you seriously suggesting that undocumented immigrants are immune from US jurisdiction in some respect? This sounds like a reverse version of the odd legal theories proffered by sovereign citizens as to why they should not be subject to judgements in US courts.
  - rayiner 2y ago
    What does “subject to the jurisdiction of” mean? Everyone seems to be equating that with diplomatic immunity, but that seems to arise from the state department’s historical interpretation of the term in determining citizenship of children of foreign diplomats. Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to incorporate English common law of citizenship. Maybe that’s true, but that’s not what the Court thought the term meant in the Slaughterhouse Cases two decades before that. Justice Harlan also had a well reasoned dissent in that case, noting that English common law on citizenship arose out of feudalism and wasn’t necessarily an appropriate source on the question. I think it’s unlikely this will get overturned, but it’s not a frivolous argument.
    - tptacek 2y ago
      Wong Kim Ark cites, at length, Marshall's discourse on jurisdiction in Schooner Exchange v McFaddon, which turns entirely on this question. It also notes the language change between the Civil Rights Act and the 14th Amendment, where the revision clarified precisely this issue. It's a frivolous argument. Would you like to put some money on this? I'd give you favorable odds at 7-2, assuming the court composition remains as it is now.
      - rayiner 2y ago
        It’s not clear to me that “jurisdiction” is being used in the same context in the 14th amendment as in Schooner Exchange. Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.

pockmarked19 2y ago

Are you saying aliens are not subject to US jurisdiction while here? Like "sovereign citizens"? That's what it seems like you're saying.

proberts 2y ago
Diplomats (not all foreign nationals) and their families who remain subject to the laws of their own country.
- pockmarked19 2y ago
  Thanks, that's interesting to know! Although my comment was addressed to willmadden, and I think they just do not know what jurisdiction means.
- 77pt77 2y ago
  Those also have diplomatic immunity.
tripletao 2y ago
The distinction in the executive order is between "a United States citizen or lawful permanent resident" and everyone else, not just citizen vs. noncitizen or lawful vs. unlawful. As drafted, the children of other lawful immigrants (H-1, J-1, O-1, L-1, etc.) would also not receive birthright citizenship. I've quoted the exact language for the father. The language for the mother is different but seems almost equivalent, excluding "lawful but temporary" status. I don't expect this to be upheld. Many tech workers will be affected if it somehow is, though. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/ https://www.whitehouse.gov/presidential-actions/2025/01/prot...

dragonwriter 2y ago

> The wording of the 14th Amendment is ambiguous? It is only ambiguous read in a vacuum. Read in the comtext of the US legal tradition in which it was written and the way the prior English common law tradition was incorporated into that tradition, it is...rather unambiguous. (Most notably, its exactly how the Supreme Court had applied the principles of English common law involved in multiple citizenship cases before the 14th Amendment establishing a uniform Constitutional rule for birthright citizenship was drafted and ratified. ) > If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way. Sure, if they can get the court to ignore the clear meaning of “subject to the jurisdiction thereof” in the context in which it was written, it can go either way. But Wong Kim Ark isn't like Roe and the line of cases descended from it, its not controversial even within the kind of conservative legal tradition that dominates the court. The Trump Administration could probably get such a case before the Court if it really wanted to, but even this court I can’t see splitting more favorably to overturning the status quo on this point than 8-1 against.

deeg 2y ago
Before the bonkers immunity decision I would have agreed with this. Since then, though, I don't trust SCOTUS on any decision that involves conservative policy. This may come up sooner than expected; Trump has issued an EO attempting to nullify it: https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/ https://www.whitehouse.gov/presidential-actions/2025/01/prot...
- rayiner 2y ago
  The president is obviously immune for official acts! You think Georgia should now be able to prosecute Biden for recklessly causing the death of Laken Riley? It’s not the Supreme Court’s fault that Jack Smith charged Trump based in part on his instructions to his own DOJ. A smart prosecutor would’ve written an indictment based purely on conduct that was obviously unofficial acts, which the Supreme Court held was not protected.
- blindriver 2y ago
  There is nothing bonkers about it. Should Obama be subject to prosecution for murder for allowing the bombing of a US citizen in the Middle East? Or should he be immune because he was engaging in an official act as President to protect the US?

anigbrowl 2y ago

I am not an immigration lawyer, but I am very interested in immigration law and the effort to overturn this precedent in particular, an interest whch goes back more than 15 years; so I have done a lot of reading on this argument. The whole phrase about 'subject to the jurisdiction thereof' refers to the fact that foreign diplomats (and often, their families) are not subject to the jurisdiction of their countries of residence, a concept known as diplomatic immunity. This sometimes leads to people with diplomatic privileges avoiding legal consequences that would otherwise result in fines or custodial sentences, as in this recent case: https://en.wikipedia.org/wiki/Death_of_Harry_Dunn https://en.wikipedia.org/wiki/Death_of_Harry_Dunn Regular, not-diplomatic people of foreign origin who are in the US are subject to the jurisdiction of US courts like anyone else. I have never found any legal justification for the opposite view other than the intense desire of the proponent for things to be different. Usually people who want to sweep aside this precedent rely on an 18th century book called The Law of Nations by Swiss legal theorist Emer Vattel, which opts for a concept of de jure (naturalized) citizenship rather than jus soli (of the soil) citizenship as exists here and in some other countries. They argue that it was a very popular book in its day and that Washington, Jefferson, and other founders of the US had certainly read it. when asked why they didn't just write this into the Constitution you usually get a hand-wavey answer about how it was so obvious they didn't see any need (at best) or the person just stops responding or gets mad (at worst).

tacostakohashi 2y ago
Yep, it's pretty nonsensical. Presumably those that hold the view that children of undocumented immigrants born in the United States are not citizens also hold they view that they are immune to prosecution for crimes by the United States for the same reason, but they don't seem to talk about that much.
- gnkyfrg 2y ago
  [dead]
rayiner 2y ago
The contrary view is based on dicta in the Slaughterhouse Cases, decided less than a decade after the 14th amendment: https://supreme.justia.com/cases/federal/us/83/36/ https://supreme.justia.com/cases/federal/us/83/36/ > 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. 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.

gnkyfrg 2y ago

[dead]