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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

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
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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.
- joshuamorton 2y ago
  I'm (legitimately) curious: how does one square the concept of not being subject to US jurisdiction for citizenship purposes, with being subject to US jurisdiction for law enforcement purposes? In all other exceptions to the 14th amendment, either you are dealing with an invading army, or you are dealing with people who have diplomatic immunity, all cases where they are not subject to American Civil law (and law enforcement). So how does the court thread the needle to allow law enforcement to interact with folks who it is claiming are not subject to US jurisdiction?
  - rayiner 2y ago
    It’s not obvious to me that “jurisdiction” could only mean “law enforcement jurisdiction” in 1868. Wong Kim Ark cited Schooner Exchange, which explained that nations have absolute jurisdiction over persons on their territory. It framed the cases you’re talking about, those having diplomatic immunity, as being a waiver of jurisdiction that was customary under international law.
- dctoedt 2y ago
  As has been noted in other responses to you: Dicta are just that, dicta. Moreover, the Reconstruction-era Slaughterhouse Cases arose in the context of the defeated South's often-violent, century-long attempts to preserve "states' rights" (read: white supremacy). Limiting the reach of the 14th Amendment was one facet of that project; Louisiana's lawyer in the case was a prominent opponent of Reconstruction. The Court's 5-4 judgment has long since been shitcanned [0]; in the modern era it's palpably frivolous to cite its dicta as support. In any event: Longstanding actual practice has followed the conventional interpretation of "subject to the jurisdiction"; see, e.g., former British prime minister Boris Johnson, who was born in NYC to British citizens and thus had to pay U.S.-citizen taxes until he renounced his citizenship. [1] Finally, as has also been noted: No sane person would assert with a straight face that a suspected thief, murderer, or unsafe driver was immune from arrest and prosecution in the U.S., merely because s/he happened to be born in the U.S. to undocumented parents and therefore was supposedly not "subject to the jurisdiction." [0] https://en.wikipedia.org/wiki/Slaughter-House_Cases#Analysis https://en.wikipedia.org/wiki/Slaughter-House_Cases#Analysis [1] https://www.theguardian.com/politics/2017/feb/08/boris-johnson-renounces-us-citizenship-record-2016-uk-foreign-secretary https://www.theguardian.com/politics/2017/feb/08/boris-johns...

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.

joshuamorton 2y ago
I'm (legitimately) curious: how does one square the concept of not being subject to US jurisdiction for citizenship purposes, with being subject to US jurisdiction for law enforcement purposes? In all other exceptions to the 14th amendment, either you are dealing with an invading army, or you are dealing with people who have diplomatic immunity, all cases where they are not subject to American Civil law (and law enforcement). So how does the court thread the needle to allow law enforcement to interact with folks who it is claiming are not subject to US jurisdiction?
- rayiner 2y ago
  It’s not obvious to me that “jurisdiction” could only mean “law enforcement jurisdiction” in 1868. Wong Kim Ark cited Schooner Exchange, which explained that nations have absolute jurisdiction over persons on their territory. It framed the cases you’re talking about, those having diplomatic immunity, as being a waiver of jurisdiction that was customary under international law.
dctoedt 2y ago
As has been noted in other responses to you: Dicta are just that, dicta. Moreover, the Reconstruction-era Slaughterhouse Cases arose in the context of the defeated South's often-violent, century-long attempts to preserve "states' rights" (read: white supremacy). Limiting the reach of the 14th Amendment was one facet of that project; Louisiana's lawyer in the case was a prominent opponent of Reconstruction. The Court's 5-4 judgment has long since been shitcanned [0]; in the modern era it's palpably frivolous to cite its dicta as support. In any event: Longstanding actual practice has followed the conventional interpretation of "subject to the jurisdiction"; see, e.g., former British prime minister Boris Johnson, who was born in NYC to British citizens and thus had to pay U.S.-citizen taxes until he renounced his citizenship. [1] Finally, as has also been noted: No sane person would assert with a straight face that a suspected thief, murderer, or unsafe driver was immune from arrest and prosecution in the U.S., merely because s/he happened to be born in the U.S. to undocumented parents and therefore was supposedly not "subject to the jurisdiction." [0] https://en.wikipedia.org/wiki/Slaughter-House_Cases#Analysis https://en.wikipedia.org/wiki/Slaughter-House_Cases#Analysis [1] https://www.theguardian.com/politics/2017/feb/08/boris-johnson-renounces-us-citizenship-record-2016-uk-foreign-secretary https://www.theguardian.com/politics/2017/feb/08/boris-johns...