Are the children of illegal immigrants... (14th amendment)

[Emsworth]

Yes: The children of illegal aliens born in the U.S. are citizens.

This issue is not a simple as some suggest. The issue here is not whether the parents (the illegal immigrants) are subject to the jurisdiction of the United States. The issue is whether the child is subject to the jurisdiction of the United States. Thus, when Sen. Jacob Howard stated, "This will not, of course, include persons born in the United States who are foreigners, aliens..." he was stating only that if the children were foreigners or aliens, they would not be citizens of the United States. He was not stating that if the parents were foreigners or aliens, the children would not be citizens of the United States.

The phrase "subject to the jurisdiction thereof" is very closely related to the common law, which defined citizenship on the basis of allegiance and jurisdiction. As far as the common law is concerned, the two are essentially the same. In the words of the jurist Albert Venn Dicey, a person's nationality depended "upon his being born within the jurisdiction and allegiance of the King." This view was confirmed by the Chairman of the Senate Judiciary Committee, Sen. Lyman Trumbull. When explaining the meaning of "subject to the jurisdiction thereof," he said: "Not owing allegiance to anybody else. That is what it means."

On these grounds, I will assume for the remainder of my discussion that "subject to the jurisdiction thereof" and "owing allegiance thereto" are one and the same.

In the words of Sir William Blackstone, "Natural allegiance is ... due from all men born within the king's dominions immediately upon their birth." Everyone who owes natural allegiance is a subject at the common law: therefore, "'British subject' means any person who owes permanent allegiance to the Crown" (Albert Venn Dicey).

A child born in England is not at the common law a subject, if he does not owe allegiance to the Crown. This exception encompasses two categories of persons: firstly, the common law does not recognize children of ambassadors as subjects; secondly, it does not recognize children of enemy invaders or occupiers as subjects. Neither of these groups owe "natural allegiance" to the Crown; therefore, neither is a natural subject.

These two exceptions are the only ones recognized. Children of all other foreigners born in England are always deemed to owe allegiance to the Crown. Lord Chief Justice Sir Alexander Cockburn stated that allegiance was owed by "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 ... save only the children of foreign ambassadors ... or a child born to a foreigner during the hostile occupation of any part of the territories of England."

Similarly, in his Commentaries on American Law, James Kent (Chancellor of the State of New York), remarked that the rule of common law applied "without any regard or reference to the political condition or allegiance of [the child's] parents, with the exception of the children of ambassadors [and] children born in the armies of a state."

Thus, at the common law, any person born in the dominions of the Crown owed natural allegiance to the King, and was subject to his jurisdiction, regardless of parentage (excepting only children of ambassadors, and children of enemies during invasions or occupations). As Justice Noah Swayne said in U.S. v. Rhodes, there is "no warrant for the opinion [169 U.S. 649, 663]   that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

I don't think that individual illegal aliens are considered an enemy army occupying parts of the United States. Therefore, I would reach the following conclusion: A child of an illegal alien born in American territory owes allegiance to the United States, and is therefore subject to the jurisdiction thereof. Accordingly, a child of an illegal alien born in American territory is a citizen.

[Emsworth]

Maryland Senator Reverdy Johnson was even more explicit: "[A]ll 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 -- shall be considered as citizens of the United States."

Senator Johnson's view is not contrary to what I have said. A child born in the United States, and not to a foreign ambassador or to a member of an invading enemy army, is not "subject to some foreign power," but rather owes allegiance to the United States, as the common law provides.

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However, the "law of the land" Sen. Howard speaks of is exactly the same as the common law rule. In 1805, the Supreme Judicial Court of Massachusetts declared that citizenship is "governed altogether by the principles of the common law." The United States Supreme Court confirmed this in several cases, including Levy v. McCartee and U.S. v. Rhodes.

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Of course. But the allegiance I speak of is owed not by the parent, who remains an alien, but by the child born in the United States, who is a citizen. Any child born in a given country owes allegiance to the sovereign power thereof, by the common law, excepting children of ambassadors and children of members of invading armies.

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But "subject to the jurisdiction thereof" has a meaning at the common law. A child of an alien born in England is subject to the jurisdiction of the Crown, and owes allegiance to it, "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" (Lord Chief Justice Cockburn).

If we accept the common law rule, a child born to alien parents in the U.S. is subject to the complete jurisdiction of the U.S. in every sense whatsoever.

[Emsworth]

It is common practice among nations to give citizenship to the children of their citizens, even if they happen to be visiting another nation at the time of birth. Would you go as far as to argue that a child who is a citizen of another nation is not "subject to a foreign power"?

I would argue that, as far as the common law is concerned, it makes very little difference what another nation does or does not do. The position of the common law is that any allegiance owed to the other country of the child's parents is not valid. To quote Sir William Blackstone, "Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection."

[Emsworth]

Indians not taxed are, in spite of section 1, still excluded from the count, presumably for the reason that they are not citizens. Their full exclusion from the basis of representation seems completely inconsistent with the idea that they are citizens; all other persons are now included.

Yet Indians, not taxed, are born in the United States.

Indeed, that is certainly true. Children of untaxed Indian tribes have been held to be subject to the jurisdiction of their tribes, to whom they owed allegiance. They are not subject to the jurisdiction of the federal government, as they do not owe "direct and immediate allegiance" (Elk v. Wilkins).

Untaxed Indian tribes were deemed to stand "in a peculiar relation to the national government, unknown to the common law"; hence, the common law rule of allegiance and jurisdiction does not directly apply to them. However, aliens, whether temporarily in the country or not, were indeed contemplated by the common law; hence, the common law rule of allegiance and jurisdiction does apply.

[Emsworth]

Slaughterhouse Cases, 83 U.S. 36 (1872)

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.

You are relying on the Slaughterhouse Cases? That decision was a farce.

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No, I respectfully suggest that it does not. A child born in the United States "ow[es] no allegiance to any alien power," because a child born in the United States is not a citizen or subject of any alien power.

If you accept that "subject to the jurisdiction thereof" is a common law concept, then children of aliens born in the United States must be citizens.

[Emsworth]

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If Indian tribes are an exception to the common law understanding, why not something more deeply rooted in American law?

Indian tribes are an exception because they were unknown to the common law. Aliens, however, were always known to the common law, and were specifically covered.

Furthermore, the exclusion of children of aliens is not necessarily deeply rooted in American law. Numerous pre-14th Amendment decisions declared that the common law rule held in the United States.

[Emsworth]

How are Indians any different from aliens, except that they are subject to another 'nation'?

Untaxed Indian tribes stand in "peculiar relation to the national government, unknown to the common law." This peculiar relation is implicitly acknowledged by the Constitution. The same cannot be said of other aliens.

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In those cases, the person in question has voluntarily renounced his allegiance to the United States. Therefore, he is no longer subject to the jurisdiction of the United States, and is no longer a citizen.

(I would say, incidentally, that the parents can voluntarily renounce allegiance to the U.S. on behalf of the child, and choose instead citizenship of their home country. But in the absence of such renunciation, the child owes natural allegiance to the United States, and is a citizen.)

[Emsworth]

You keep dodging the issue of whether or not a citizen of another state is subject to a foreign power or not.

With the greatest possible respect, I don't think that this is a relevant issue. As far as American law is concerned, a child born here owes allegiance to the United States, and not to any foreign power whatsoever. So it does not really matter if a citizen of a foreign state is subject to American jurisdiction or not, as far as this discussion is concerned.

To answer your question: if American law recognizes an individual as a citizen of another state, then that person is subject to a foreign power. But a child born in the U.S. is not acknowledged, by the American law, as a citizen of another foreign power, excepting only the child of an untaxed American Indian (an exception clearly implied by the Constitution) or of an ambassador (an exception provided by common law).

[Emsworth]

Identifying a common law concept is one thing. Saying how it applies to a given situation is another.

Perfectly true. I am arguing that the common law concept applies entirely wherever possible. It does not apply to the Indian tribes, because the it cannot apply to the Indian tribes.

The common law dealt with the status of children whose parents are subjects of foreign states. There is no reason for which this part of the common law should not apply to the United States. Indeed, the courts have long recognized that it does apply.

However, Indian tribes are not foreign states, but alien nations within the territorial limits of the United States. They are unrecognized by the common law, but are rather a peculiarity of the American law. Therefore, the common law concept cannot be applied to them. That does not mean, however, that the common law rule should not be applied to all other children of alien parents. The status of normal alien parents is known to the common law, so the common law rule can there be fully applied; the status of Indian tribes is unknown to the common law, so the common law rule cannot be fully applied.

"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,--children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country." -- U.S. v. Wong Kim Ark

[Emsworth]

Well, I'll have to concede that I lost this debate.

Hmm, so that brings it to about ten wins for you, and one win for me?

[Emsworth]

Except those ten were really just the result of one (due process).

Yes, but it retrospect, that was little more than stubborn adherence to a clearly incorrect doctrine on my part. Perhaps, it was the effect of turning the Constitution into what one wants it to be, rather than what it really is.

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Well, not really, because I rejected incorporation on the basis of the privileges or immunities clause just as you did.