Subject to the Jurisdiction Thereof

By William Buchanan
Published in The Social Contract
Volume 7, Number 4 (Summer 1997)
Issue theme: "The abuse of asylum and refuge"

American law has long granted American citizenship to anyone born on American soil regardless of the status of the parents. The children of citizens and legal immigrants are citizens beyond a doubt. However, extending citizenship to children born to illegal aliens or to non-immigrants raises a lot of serious questions. We believe that legislation to deny such citizenship is both constitutional and necessary.

The ability to distinguish between citizens and non-citizens is a fundamental attribute of sovereignty and of nationhood. In recognition of this, our Constitution, in Article I, Section 8, grants to Congress the power "to establish a uniform rule of naturalization...."

Section 1 of the Fourteenth Amendment to our Constitution further states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States...." This section overturned the Dred Scott decision and declared that former slaves and their progeny were American citizens. That the Congress and the States intended more than this is open to question. Just what did the framers of the Fourteenth Amendment mean by "subject to the jurisdiction thereof"?

Jurisdiction Further Defined

First of all there is Criminal Jurisdiction. All persons except accredited diplomats are subject to the criminal jurisdiction of the country in which they reside. This is a universal concept that has nothing to do with citizenship. Moreover, no jurisdiction has less to do with new-borns - they do not commit criminal acts! It is safe to say that this was not the kind of jurisdiction the Congress and States had in mind when they ratified the Fourteenth Amendment.

Diplomatic Jurisdiction is an accepted international custom, recognized in English and American common law, and confirmed by the Supreme Court, that children born to diplomats are citizens of the country their parents represent. No constitutional amendment was necessary to make that distinction. Nevertheless, the Vienna Convention on Diplomatic Relations (23 UST 3229) empowers the President to declare a diplomat persona non grata (Article 9).

Moreover, Article 31, while establishing the diplomat's "immunity from the criminal jurisdiction of the receiving State," does not exempt the diplomat from its "civil and administrative jurisdiction" in the case of private ownership of real property, or private actions as an "executor, administrator, heir or legatee," or in a "professional or commercial activity." That's a lot of "jurisdiction thereof" but surely not the kind the framers of the 14th were thinking of.

As to American Indian Jurisdiction: how exceeding fine the Supreme Court can grind this issue is illustrated in an historic case brought by a Native American [Elk v. Wilkins, 112 U.S. 94 (1884)]. John Elk was born in a part of the 1803 Louisiana Purchase that came to be called Nebraska - born subject to U.S. military jurisdiction. Nebraska, "settled" in 1823, accorded territorial status in 1854, and granted statehood in 1867, limited the vote to adult male citizens who were bona fide residents of the state for six months. Elk had renounced his tribal membership and by 1880 had lived in Omaha for over a year and claimed the right to vote in Nebraska since he was a U.S. citizen by birth based on the Fourteenth Amendment.

About the author

William Buchanan is legislative director of the American Council for Immigration Reform (ACIF) based in Washington, D.C.

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