What do Jacob Howard's words mean in the 14th Amendment: “subject to the jurisdiction thereof" for citizenship?

There are few topics more steeped in controversy than immigration laws and statutes that have been willfully ignored to allow 20 to 30 million non-citizens to take up residence throughout the country. In the targeted Aztlan States across the southwest, the percentage of illegal migrants has dramatically shifted political landscapes and devastated local economies as American workers have been displaced in the millions. Among the topics worthy of some thought, and perhaps debate, is the Citizenship Clause in the 14th Amendment over whether the practice of non-citizens appearing in the U.S. for the purpose of anchoring family bloodlines through birth of a child on sovereign territory assigns rights that the outsiders have any basis to demand for generations thereafter.

The principal authors of the 14th Amendment have been widely regarded to be Senator Jacob Howard, from Michigan, and Congressman John Bingham from Ohio, with contributions from Senator Lyman Trumbull, Chairman of the Judiciary Committee and nine other members of the Joint Committee on Reconstruction. Specifically with regard to the fifth section, which has long been known as the Citizenship Clause, the presentation of the final section for debate fell to its primary penman, Senator Howard.

In 1866, Senator Howard unambiguously described the intent of the 14th Amendment during discussion and debate before the Senate by stating:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

And his presentation for discussion was reaffirmed by Senator Edward Cowan, who stated:

"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."

The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

According to words from the authors recorded in documents kept in the National Archives, the correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby. Multiple cases brought before the Supreme Court during the decades following the Amendment’s ratification supported the framers’ words and intentions, and no higher court ruling directly disagreed with Senator Howard’s explanation ahead of the 1965 Immigration Act. During the mid-1960’s, a decidedly liberal shift in thinking towards the nation’s immigration policies appeared to discount the words Senator Howard felt were critical when he steered discussion, argued for and explained the importance of the phrase “subject to the jurisdiction thereof.” After the 1965 Immigration Act, babies born to illegal alien mothers within U.S. borders were regarded as anchor babies for the first time. Thereafter, in a noteworthy Supreme Court ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), the Court appeared to completely discard the fourteenth’s Citizenship Clause scope and intent by replacing it with a new, inventive Citizenship Clause that supported a radically shifted social policy from a decade of unrest over well documented Constitutional policy.


Since most scholars believe it’s impossible to misinterpret what was intended originally by Senator Howard and his colleagues during the process of writing, debating and ratifying the 14th Amendment, how the Citizenship Clause was applied for nearly a hundred years appears to have been subverted and altered in recent decades for unwise, deleterious social policy.

Do you believe Senator Howard’s phrase “subject to the jurisdiction” still has applicability and importance for current immigration policy debate? Should we accept the 5‒10 million babies born to illegal aliens on our soil over the past two decades as fellow countrymen with full rights bestowed to any and all legitimate citizens of the United States? Or is there reason to believe social policy and activist judges intent on legislating from the bench deserve less credibility than the all-important Constitutional Amendment, which gave us a surprisingly unambiguous Citizenship Clause?

Update 2:

How do you feel the U.S. should handle offspring born to foreigners with no basis, documentation, or right to be in our country? Is there really any supportable argument for those individuals having won one of the worlds most prized rights in something akin to a fixed lottery, simply as a result of misdeeds and unlawful activities of fertile parents our system has acquiesced to support on account of babies strategically born here?





Update 3:

PennyLee: I trust you’ll have little trouble acknowledging that words and phrases used in common language have a tendency to shift as far as meaning or recognizability for intent. That’s among the reasons discussion in the Congressional Record is a useful tool for clarity such as Sen. Howard’s archived words of explanation to his fellow Senators where he said, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

The rambling recitation of English common law by Justice Gray in the U.S. v. Wong Kim Ark ruling, then continued reference to various European law offering support for jus soli over deeper rooted jus sanguis rule of law...

Update 4:

ahead of reference to our Constitutional Amendment or earlier Supreme Court rulings is troubling to many. The dissenting opinions appeared more focused and more reliant upon U.S. law as recorded during the 14th Amendment’s development through three decades of citizenship case law leading up to 169 U.S. 649 (1898). The decision also differs significantly from discussions of status of offspring to typical illegal migrants, because the Wong family was legally present in San Francisco where they resided in the same home for two decades, and Kim’s father, Wong Si Ping, was seen as a successful and respected businessman in the community who was properly registered with local authorities.

But the words of an esteemed research fellow in Constitutional studies who’s written extensively on this topic are likely to be more educational than anything I can offer. P.A. Madsen’s evaluation should be of interest here:

Update 5:

It’s worth mentioning that it was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction of the United States. Obviously, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.

For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of personal allegiance to the King, no more survived the American Revolution than the same rule survived the French Revolution.”

Update 6:

Taken into account the legislative history behind the citizenship clause - and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling as worthless as a three-dollar bill. Adhering to Wong Kim Ark as precedent will never breath any factual substance into this very erroneous ruling.


Update 7:

PennyLee: Your comment about Madison's name being misspelled was correct. That's what happened as a result of responding to your answer after midnight. Your beloved Dr.C. claimed such a timeframe affected posts of his, as well. I was interested in his attempt at reason and logic, since his words suggest we’ve shared some training as far as fields of study, in spite of the more limited extent of post-graduate education he referred to while sharing his credentials. Since you favor his extreme liberal blog format with minimal contribution from legal experts, perhaps when researchers or JD's weigh in you feel pained and duty-bound to reject words such as those from Madison or Dr.C’s nemesis Bob Longfellow. His grasp of the law is obviously superior to that of your blogger friend, and his wisdom and insight is invaluable for anyone unfortunate enough to have found themselves at Dr.C’s site, which overlooks critical words and decades of support for the 14th Amendment’s original meaning.

Update 8:

Have you actually read WKA and Justice Gray’s rambling common law reasoning, which was weighted ahead of the 14th Amendments careful wording or the author’s unmistakable explanation from Congressional records, or are you simply another liberal proponent of “We have to vote on it to find what’s in it” as an excuse for rational thought or analysis?

5 Answers

  • 9 years ago
    Favorite Answer

    Thanks for the great information, RMP! Your material made the Citizenship Clause and 14th Amendment come alive in a new way for me. The links to Madison's analysis and impressive research provide outstanding support from a Constitutional expert whose message should be given broad ranging public exposure. Made it though two of the posts and glanced at the longer ones, which I'll return to finish later.

    What's hard to fathom is the level of misunderstanding and misuse of the Amendment in support of a birthright citizenship policy. Jacob Howard appears to have been an especially important contributor to an Amendment that was supposed to have clarified citizenship rights, and his words in explanation seem unambiguous, as you suggest. During the post-Civil War period, our Congressional leaders felt a burden to address citizenship to protect civil rights and must have been satisfied that their Constitutional Amendment served to make who was and who was not born as a citizen or eligible to become one here in the United States recognizable and clear. Like so many instances of liberal Courts which brazenly strive to legislate from the bench, it looks like there was a purposeful attempt to overrule the authors' intent with an unjustifiable reliance on English common law practices as part of the 1898 ruling by the Supreme Court.

    It would be hard to overlook the critical nature of restoring the Citizenship Clause's application to more nearly coincide with the authors' intent. We cannot pretend to maintain a reasonable measure of sovereignty without having rules in place which are fully enforced in regard to immigration and citizenship. Measures such as the Dream Act can never be passed, and the altered misuse of an Amendment appears to call for legislative action to restore reasonable measures of protection for legitimate citizens of the United States. For millions of Americans, more than prosperity may be at risk over this issue, with economic survival an all too real concern.

    It's not altogether easy to get through posts as lengthy as yours, but it could hardly be a more worthy read. We need to gain control of citizenship and immigration issues. We can only hope politicians may be more willing to address the public interest and demands for protection of our borders for the nation's sovereignty after the 2010 election removed unprecedented numbers of legislators who failed the electorate. Do you think they got the message?

  • 9 years ago

    Seems pretty clear to me. Illegal aliens are still subject to the jurisdiction of their home country. Which oddly enough is only applied at their convenience, i.e. as publicity pawns if harmed or killed by border patrol, etc. Being a foreign national, their subsequent offspring would be citizens of their homeland.

    Hopefully, in the near future, a more sane, unambiguous rider can be added to the 14th. Or repeal the 14th in total and rewrite a new version that would be much harder to misinterpret by an activist judicial.

  • 9 years ago

    In the debates for the Civil Rights Act of 1866 and the 14th Amendment, "subject to the jurisdiction thereof" means that the person in question is subject to the laws of the US. That means everyone in the US EXCEPT ambassadors (diplomatic immunity applies), invading armies, and certain Indians at the time who weren't subject to tax laws and weren't counted as citizens. It applied to anyone else, whether here legally or not.

    Senator Howard said that foreigners who are related to ambassadors and foreign ministers aren't eligible to be citizens at all. He never said ALL foreigners. He was referring to the usual, historical, and well-recognized exceptions to who is a natural born subject under Common Law -- ambassadors, who owe allegiance to the sovereign of another country and are given special status in this country. He also wasn't debating the 14th at the time -- he was debating the Civil Rights Act of 1866.

    Cowan (who was a racist intent on excluding Chinese and Asians), is right in his quote -- foreigners aren't citizens. They are foreigners. Once they naturalize, they are no longer foreigners. Duh.

    Also check out US v Wong Kim Ark, 1898. http://www.law.cornell.edu/supct/html/historics/US... (NOT a liberal court from the 60s) WKA's parents were Chinese, who were unable to become naturalized citizens due to the Chinese Exclusion Act. The Supreme Court found that under the 14th Amendment, WKA was a citizen of the United States as he wasn't one of the 3 excluded classes (ambassador, invading army, Indian not taxed), and was therefore a citizen by birth of the USA. In a dissenting opinion, Chief Justice Fuller pointed out that this meant that: "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not." That was the LOSING side. The majority side rejected that thinking. This case has been used in hundreds of Supreme Court and lower court rulings for over 100 years.

    The Citizenship Clause was meant to include everyone born on US Soil (except the 3 Common Law exclusions). Period. The Congress in 1866 knew what they were enacting -- read the actual debates.

    ADDED: It's P.A. Madison, a pseudonym whose credentials are impossible to verify. Real lawyers give him little credence. http://www.obamaconspiracy.org/2009/05/madison-v-m...

    This is not a forum for debate, so that's all I'll add. If you DO want to learn something beyond cut and paste talking points, go to http://www.obamaconspiracy.org

    Source(s): Go to http://www.obamaconspiracy.org/ if you really want answers to this and aren't just spouting off by copying and pasting.
    • History_101
      Lv 4
      6 years agoReport

      Well said and on point. Obviously someone here understands originalism and textualism. Furthermore the rules of construction when interpreting the Constitution of the United States.

  • Golfer
    Lv 7
    9 years ago

    Basically those here legally and are not yet citizens that their children are citizen. Those here to visit or here illegally are not granted citizenship just because they are born in the USA.

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  • Anonymous
    9 years ago

    They should all be dragged out into the desert, and purified with pain

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