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