Comments on the 14th Amendment
WSJ 11/10/18 Letter to the Editor
Parsing Jurisdiction in the 14th Amendment
Regarding your editorial “Rewriting the Fourteenth Amendment” (Oct. 31): The Constitution has two requirements for automatic citizenship: being born on U.S. soil, and being “subject to the jurisdiction” of the U.S. The latter phrase appears to the modern eye to simply mean “subject to our laws,” but for those who drafted and ratified the 14th Amendment it meant “partial” or “territorial” jurisdiction, not the complete jurisdiction intended by the amendment. That’s what Sen. Jacob Howard, the author of the language, said. That’s what Sen. Lyman Trumbull, the principal sponsor of the amendment, said. And that’s what the Supreme Court said in Elk v. Wilkins (1884): “subject to the jurisdiction” of the U.S. requires that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
The children of temporary visitors to this country (particularly those not lawfully present) simply do not qualify for the automatic citizenship guaranteed by the 14th Amendment. This wasn’t the law of jus soli, as you claim. Indeed, the other aspect of jus soli—once born the king’s subject, always the king’s subject—was thoroughly rejected by our nation’s founders when they adopted the Declaration of Independence.
Em. Prof. John C. Eastman
Chapman University Orange, Calif.
The president does not have the power by executive order to affect how citizenship is applied under the 14th Amendment, nor need we go through the process of amending the Constitution to stop the fraudulent misuse of birthright citizenship. This can only be done by Congress, which has the constitutional power under Article I, Section 8, “to establish a uniform Rule of Naturalization.” Regarding the oft-quoted 14th Amendment, it states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The abuse of birthright citizenship can be stopped by congressional legislation under the existing constitutional powers of the legislature.
Rosendo J. Castillo
Mission Viejo, Calif.
I appreciate Josh Blackman’s “Birthright Citizenship Is a Constitutional Mandate” (op-ed, Nov. 2) but he neglects to mention that one of the consequences of illegal entry into the U.S. is deportation, which means that the U.S. does not consider illegal immigrants to be under the jurisdiction of this country. If it did, punishment would be fines and jail time, after which they would be released into the population and allowed to apply for citizenship.
Illegal immigrants don’t hide in this country to avoid jail time. They hide to avoid being deported. There remains plenty of room for discussion of this issue, and it needs to be settled by the Supreme Court.
Terry A. Larson
Prof. Blackman points out that Native Americans born on tribal lands within the U.S. were excluded from birthright citizenship under the 14th Amendment, even though they were persons under U.S. law and entitled to its rights and protections such as the right of habeas corpus (Standing Bear v. Crook, 1879.) In Ex parte Crow Dog (1883), the Supreme Court held that the U.S. did not have jurisdiction of Indian-on-Indian crime on Indian land. Congress quickly passed the Major Crimes Act, 18 U.S.C. §1153, which gave the U.S. that jurisdiction, but even that act did not grant Native Americans birthright citizenship.
In Elk v. Wilkins (1884), the Supreme Court held that John Elk, a Native American, was not entitled to birthright citizenship, even though he was born on U.S. soil. The court held the jurisdictional phrase of the 14th Amendment encompasses an allegiance requirement. Since Elk owed “immediate allegiance” to his tribe, he was not subject to the jurisdiction of the U.S. at birth. The court explicitly stated, “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
It was not until the Indian Citizenship Act of 1924 that Native Americans were granted birthright citizenship by Congress.
Mitchell R. Miller
Beverly Hills, Calif.
The Constitution was not meant to be “living,” it was meant to be amended.
Chapel Hill, N.C.■