Experts say.
On the Original Legal Meaning of “Subject to the Jurisdiction Thereof” – Reason
A Five-Word Enigma: ‘Subject to the Jurisdiction Thereof’ – WSJ
Why Trump’s Quest to Gut Birthright Citizenship Is Doomed – NY Mag
Looking to limit birthright citizenship, Trump turns to an 1884 Supreme Court ruling against a Native American man – Experts on Native American law say the Elk v. Wilkins ruling has no bearing on whether the children of immigrants without permanent legal status can be denied birthright citizenship. – NBC News
Experts. What would we do without them?
Elk v. Wilkins quite clearly explained what ‘Subject to the Jurisdiction Thereof’, the five words at the center of President Trump’s birthright citizenship order mean. The question was whether an American Indian born on a reservation was a citizen. The Supreme Court decided he wasn’t because he wasn’t subject to the jurisdiction of the United States. That phrase in the 14th Amendment made it abundantly clear that its purpose was to naturalize freed black slaves, not random foreigners.
“Though the plaintiff alleges that he “had fully and completely surrendered himself to the jurisdiction of the United States,” he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States.”
“But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.”
You cannot involuntarily become an American against the will of the United States. Nor do you magically becoming an American by being born here. Becoming an American is a process that requires mutual consent.
Finally, when it comes to “subject to the jurisdiction of” in the 14th Amendment, “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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
No birthright citizenship for foreign nations whose child is born here.
Wong Kim Ark v. United States, which is what open borders activists are relying on, so that in 1924, the Indian Citizenship Act had to be passed to give all American Indians citizenship because the justice in both cases reverted himself in 1898 to claim that only the children of Indians, but not anyone else’s children, did not automatically become citizens, because he viewed the Chinese Exclusion Act as racist. This reasoning made no logical sense and directly contradicted the Elk decision.
Trying to separate jurisdiction and allegiance created the absurd situation in which there was automatic naturalization without allegiance. None of this accorded with American law or the 14th Amendment.
The idea that foreign nationals, especially ones here illegally, unlike the Wong Kim case, can force naturalization is wrong. And Elk v. Wilkins showed why.
