Birthright Citizenship

Political Philosophy Law
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A History of Birthright Citizenship at the Supreme Court

Citizenship of Native Americans 

My Grandfather Boydstun was a quarter Choctaw and would have citizenship under the Dawes Act concerning Indian Territory, to which that tribe had been removed from the South in the 1830’s (by three Trails of Tears for that tribe). I don’t know but what my Grandfather could have been an American citizen anyway already. After all, his paleface ancestors by his name had come to VA and MD in the 1600’s before the Founders were born, and some of their descendants (born here, of course) fought for the American Revolution. American Indians fought in WWI for the US, and some of the Choctaw were Code Talkers. That military service was one of the factors leading to the 1924 Act of Congress making all Indians US Citizens. 

Oath for Naturalized Citizens

“. . . that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law . . .”

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Boydstun’s Indian ancestor found:

dd_ses-eve-t_0003811.jpg.f6ad56120c23146911c7cd2898e81a13.jpg
dd_ses-eve-t_0003811.jpg.f6ad56120c23146911c7cd2898e81a13.jpg1145×1600 179 KB

Oh wait, wrong Indian.

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31 minutes ago, human_murda said:

Boydstun’s Indian ancestor found:

. . .

Oh wait, wrong Indian.

Correct.* THAT was who the songwriter was talking about with his line “you’re my hot ma-gandhi” in You’re the Top.*

“. . . making all American Indians US citizens.”

1 Like
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The Trump Executive Order working its way through legal challenges (as of 2/10/25)

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23 hours ago, Boydstun said:

 

A History of Birthright Citizenship at the Supreme Court

 

It is a far cry from tribal groups who long, previously inhabited the land that became a nation, being properly, though tardily, granted citizenship – to a (illegal-undocumented ) mother giving birth there today, which ~automatically~ would bestow the same on her child. Once in; in for all time - and what can you, the Gvt, do about it? Nothing. 

“Within its jurisdiction” seems to me a poor, legal argument (which means any foreign visitors and tourists and/or their babies born there can claim citizenship). While lawful protection, of course, must be given them when there.  And “the equal protection of the laws” (while visiting or after sneaking into the country) is not synonymous with qualifications for citizenship. My interest has wider implications for other countries if I must explain myself.

I admit the “birthright” thing has anti-conceptual undertones for me. Some strange bond between an infant and the place he’s born, irrespective of his parents?

----Excerpt:

"In 1982, the Supreme Court interpreted a separate but similar clause of the 14th Amendment to have an equally expansive scope. In Plyler v. Doe, the justices ruled, by a vote of 5-4, that a Texas law barring undocumented immigrants from attending public school violates a provision of the amendment that prohibits a state from denying to any person “within its jurisdiction”.

In an opinion by Justice William Brennan, the court rejected the state’s argument that undocumented immigrants were not “persons within its jurisdiction” and therefore not covered by the equal protection clause. The phrase “within its jurisdiction” “confirms,” Brennan explained, “the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.” This includes, Brennan stressed, people who entered the United States without proper documentation: While they are in a state, he reasoned, they are both “subject to the full range of obligations imposed” by the state’s laws and “entitled to the equal protection of the laws that a State may choose to establish.”"

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@whYNOT – I read this Executive Order closely right after it was issued. It seemed sensible to me. The legalities are apparently more complicated. 

On the psychological side, I think of this country as mine, this one alone as mine, and as having been mine since I was born. And it had nothing to do with heritage or social situation of my parents. The general idea of birthright citizenship seemed to align with and ratify that way of thinking. Considering that psychological side more closely, however, I don’t think I became much aware of the social world so wide as the country and identify with it until a ways into the early grades of school. I do remember as early as first grade saying the Pledge of Allegiance and singing the National Anthem in class. Some of us boys did not seem to have a steady sense of solemnity concerning the latter, because we had our alternative words we sang, at least among ourselves alone: “Oh say can you see any black bugs on me? If you do, pick a few, and leave the rest for the teacher to chew.” Certainly by 6th grade, I had firmly picked up the personal identification with country. The Yankee one, not the other attempt at one. The one with freedom in a world largely communist dictatorships and becoming more so. 

What years were you in America? Were you a citizen?

In high school, the boys were called to an assembly at which military personnel explained that ahead of you was six years of service in one or another branch. I started doing some running to get in shape. But when I got the order for pre-induction physical, I’d been in college a couple of years and had read an underground subversive writer who proclaimed that my life belonged to me, not the state. So I was joyous to have flunked the physical due to my psychological condition in those days, and to have a future open to me to make my own life. And I didn’t feel unpatriotic about that, because in other circumstances, such as a national emergency or all-out attack on the US, I’d gladly join the service.

Some off-the-cuff remarks on issues you mentioned, Tony: These are not legal views, only ordinary. It had always seemed wrong that you were being drafted and you were not allowed to vote. Eventually, they fixed that by lowering the voting age. The idea of equal protection under the law has seemed an implementation of the feature in general conception of human rights: that each individual has equal fundamental rights because each is equally an end in themselves. Maybe more thinking about which rights are more fundamental could help in sorting out the legal implementation. That a man in Texas was subject to the law, yet denied public education for his children does not seem necessarily wrong, provided the law was not requiring specific performance from a peaceful man (such as military service) and provided he was not paying property tax, the usual main source of local school funding until recent years, when the State began funding more and more for those schools. (When I was a child, I heard that the oil companies were supporting the public education in Texas, rather than taxes, but I’ve not looked it up, and just now I have to shovel a lot of snow because West Virginia has seriously failed in its raison d’être.)

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There are two main traditions in law. One depends on a wise ruler who has special skills at perceiving justice and can issue ad hoc but correct rulings when called on. The other depends on there being objectively-stated principles which can be applied by any man of reason to decide the outcome of any case. Although US law has tended towards the objective-statement approach, it has been seriously contaminated with wise-ruler ideology. The reason why wise-ruler ideology contaminates US law is that there are very few objective principles in law that any man of reason can follow.

 

3 hours ago, whYNOT said:

“Within its jurisdiction” seems to me a poor, legal argument

This is not an “argument”, it is one of those few unarguable objectively-stated legal principles. The actual starting words of the 14th Amendment to the US Constitution are: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”. We arrived at that iron-clad rule by a process of argument and following other iron-clad rules regarding changes to those iron-clad rules that make up the US Constitution. In 1919, the US Constitution was modified by an 18th provision that “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited”. It was plainly a stupid modification, and after suffering the consequences for 17 years, it was repealed. Another plainly stupid amendments was the 16th amendment, ratified 112 years ago, which gave Congress the power to tax income. This piece of stupidity has been with us for quite some time and will not go away until the power goes out and the nation dissolves.

If you do not like the fact of birthright citizenship, the solution is political, just as it was for all other constitutional amendments. Persuade enough people to adopt some alternative rule of citizenship, and the 14th Amendment can be entirely repealed if the masses so wish.

You will have no doubt observed that there is great controversy in the US over what “rights” the US constitution protects. For a while, we believed that it protected a right to privacy, but there is no such clause in the Constitution, and therefore it is not a private matter for the individual to decide whether a fetus has rights as a real person does. That is a matter to be decided on a case by case basis according to the individual state. So what good is this “birthright citizenship” rule? The 14th Amendment continues: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. This encapsulates the value of citizenship. It means for example that a state cannot decide to confiscate the property of citizens who are Jews, or simply on an arbitrary basis. It does allow the equal confiscation of property, in violation of the rights of the individual.

All of these clauses can be modified through an arduous procedure for whatever political reason the masses find appealing. What’s new is that there is a second path to changing those iron-clad objective principles of law, now being tested, that a “wise ruler” will intuit what the nation needs and will invisibly rewrite those objective laws. The interesting question which people have not yet discussed, that executive rewriting of the Constitution would re-interpret Article II, Section 1, Clause 1 on the term of office. Under one interpretation of reality, the 22nd Amendment has already been repealed, since purportedly Trump was re-elected in 2020 and yet he sits for a third term in the aftermath of the 2024 elections.

A better solution would be to completely sweep away all vestiges of “citizenship” under law, to be replaced with simple concepts of “proper function of government” and “man’s rights”, irrespective of citizenship – which is itself has anti-conceptual undertones. The entire problem stems from the fact, as implicitly recognized in the 14th Amendment, that the government has the legal power to utterly violate the rights of any individual, except in a very few special cases and even then the supposed limits give way to the exception “unless the government has a good reason to”.

Space below for the laughing hyena to counter-“argue”.

 

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I suppose the argument from the Trump side is that if a person is in the country illegally they are not “subject to the jurisdiction,” because it would be a contradiction; in order to be subject to the jurisdiction they would have to obey its laws, but the laws of the jurisdiction would require that they not be there in the first place.

Still, for avoidance of doubt, it might be good to have a new constitutional amendment to clarify this.

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1 hour ago, necrovore said:

I suppose the argument from the Trump side is that if a person is in the country illegally they are not “subject to the jurisdiction,” because it would be a contradiction; in order to be subject to the jurisdiction they would have to obey its laws, but the laws of the jurisdiction would require that they not be there in the first place.

Still, for avoidance of doubt, it might be good to have a new constitutional amendment to clarify this.

I invite you to state what constitutional amendment would re-define “subject to the jurisdiction” in a manner that has the exclusionary result which you have in mind. For example, is the Japanese Ambassador to the US “subject to US jurisdiction”? Traditionally, he is not. For example, Anne Sacoolas who the wife of a US spy while in the UK and therefore under diplomatic protection killed a British youth, and availed herself of “diplomatic immunity”. A constitutional amendment could nullify the concept of diplomatic immunity (there would be consequences, but that’s not important).

An even more expansive interpretation of “subject to the jurisdiction” would be to declare that everybody on the planet is subject to US jurisdiction, which would mean that technicalities like extradition and sovereignty would not restrict the long arm of US law.

It would be obviously silly to claim that “A person who break a US law is not subject to US jurisdictions”. I pray that I don’t need to explain why that is so. That isn’t one of those “avoidance of doubt” over-clarifications, that is plain old avoidance of stupid reasoning.

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Breaking the law is not enough; one would have to enter the jurisdiction without permission.

This does not rule out that there are other ways to not be “subject to the jurisdiction” such as diplomatic immunity etc.

I suppose it would be pretty funny to claim that all illegal immigrants are entitled to diplomatic immunity. (I don’t think that’s a claim that you are making, though, or Trump either.)

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I am claiming that under the law, “subject to jurisdiction” refers to anybody subject to the ruling of the court system of a nation. Diplomats are not subject to the host nation’s court system. Trump has a delusion about who is subject to a nation’s court system – he thinks that by breaking a law, you are then not subject to the courts of that nation. He is inventing a new and logically incoherent class of “people not subject to the courts”. The courts do have personal jurisdiction over illegal aliens, whereas they do not have jurisdiction over diplomats. US courts also do not have personal jurisdiction over Russians for acts committed in Russia against Russians – jurisdiction is primarily geographically bound. There are a few exceptions where nobody anywhere can attack a US interest – classically piracy, as well as war crimes. An exception is that US citizens and LPRs are subject to certain US laws even for criminal acts committed outside the US (also enslavement or child sex trafficking) – a number of African nations have extraterritorial jurisdiction over their citizens for criminal homosexuality.

Also recall that for most of the history of the US, permission to enter the US was not required and yet we have always had the legal concept “subject to jurisdiction”. When you enter the US without permission, you do not earn a get out of jail free card: you are subject to laws and can be prosecuted for violating them.

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Maternal citizenship inheritance upon birth.

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If Russians in Russia are not subject to US jurisprudence on the idea that they are non-citizens residing in Russia, how would illegally entering the US change that idea? What legal/constitutional argument can be made that mere entry severs the prior definition of the individuals’ ‘status’ as it applies to their relationship to the US government?

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Whenever a person enters the US, they become subject to US courts. Entry into the US severs nothing, except in Trump’s delusional world where entry into the US severs one’s legal obligation to follow the law. Entry into the US creates a relation, that of “being subject to jurisdiction”.

The exception is diplomats, an exception that Trump could sweep away. Since nothing in the US Constitution directly grants immunity to diplomats, that would be doable by act of Congress, only requiring withdrawing from the Convention on Diplomatic Relations and repeal of a pesky law. The Constitution does not actually say how to get out of a treaty. In fact POTUS has unilaterally terminated treaties over the past century, and it seems to be the legal norm. Trump 1.0 did so (Paris Climate, Trans-Pacific Partnership, Iran Nukes, WHO, UNESCO) on a number of occasions, and if he decided to hell with diplomatic immunity, that treaty could be swept away. However, Congress did enact the Diplomatic Relations Act of 1978 which means that he himself cannot sweep away existing law, at least until SCOTUS grants him that power. With Congress falling in line, we could get rid of those pesky diplomats, though we should first withdraw all of our diplomats.

The problem with Maternal citizenship is that some countries operate on the basis of paternal citizenship, for example benig genetically Iranian is a permanent paternal stain that cannot be removed and overrides any maternal citizenship. And really, why should we grant citizenship merely because of the citizenship of the mother? Why not require both parents and even grandparents to be natural born citizens?

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Is the distinction between inhabitant and citizen a rational or moral good? Should the ‘franchise’ be considered as a privilege or right ? 

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That is like asking if a house is a right or a privilege. Is “being president” a right or a privilege? You have a right to life, and society should be subordinated to moral law, via the concept of individual rights. It is a non-essential detail of implementation to specify exactly how society is subordinated to moral law, whether it be via law drafted by a committee of volunteers and voted on by direct democracy, or by a philosopher king who via acute application of reason manages to always write exactly the correct law. You are asking what is the most effective political system within those systems that are capitalism, for protecting individual rights. That is different from asking what man’s rights are.

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A relationship between an individual and the state is nothing at all like a relationship between an individual and a physical object.

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My right hand is nothing at all like my left hand. Apparently you don’t understand the theory of concepts.

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‘the’ theory?

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That is correct.