Part 3

Subject to the Jurisdiction: The True Meaning of the Fourteenth Amendment

Edward J. Erler

Professor Garrett Epps’s response is amusing but hardly enlightening. The substance of his argument reminds me of Abraham Lincoln’s characterization of Stephen Douglas’s principal contention in the Lincoln-Douglas debates. It is, Lincoln said, “as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death.” And, Lincoln continued to uproarious laughter, “when it is brought to the test of close reasoning, there is not even that decoction of it left.”

I agree with Epps that we ought not to tamper with the Fourteenth Amendment. But his misinterpretation of the intention of the framers of that notable instrument is the worst kind of tampering.

Not Radical

First, it is necessary it is to rebut the hysterical assertion, repeated by Epps, that denying birthright citizenship would strip “American citizenship from millions of American-born children.” American citizenship, once vested, cannot and should not be divested, and no one—certainly not me—advocates such a thing. But it is possible, by ordinary legislation implementing the provisions of the Fourteenth Amendment, to prevent the children of aliens illegally in the United States from becoming birthright citizens. Neither they nor their parents are “subject to the jurisdiction” of the United States as that phrase was understood by the framers of the Fourteenth Amendment.

The Fourteenth Amendment, I have written many times, was intended by its principal sponsors to be a completion of the American founding. Its specific design (along with the Thirteenth Amendment) was to bring the Constitution into formal harmony with the principles of the Declaration of Independence. Thaddeus Stevens, a member of the Joint Committee on Reconstruction, remarked during debate that “our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.” References to the Declaration as “organic law” were so frequent throughout the debates that one can hardly doubt that the Reconstruction Congress conceived its principal task as completing the regime of the founding, a founding that was rendered incomplete because of its compromises with slavery.

Thus, the Fourteenth Amendment was not a radical change, as Epps seem to maintain, but a reaffirmation of the founding principles. This was not only the view of the members of the Joint Committee on Reconstruction but a pervasive theme in the debates. It was also the view of such interested observers as Frederick Douglass, the great abolitionist leader. Epps’s unsubstantiated contention that in the Fourteenth Amendment “the nation’s leaders came to believe that the original Constitution’s silence on citizenship was a terrible flaw” is utterly refuted by this quote from John Bingham, who is widely regarded as one of the principal architects of the Fourteenth Amendment.

Speaking in support of the citizenship clause, Bingham remarked that “I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of our Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.” It is also important to note that Bingham understood jurisdiction as a matter of allegiance—as did all the principal sponsors of the amendment. Jurisdiction did not mean to them—as Epps mistakenly claims—merely subject to the laws or the courts.

The Roots of Citizenship

To understand how the framers of the Fourteenth Amendment saw citizenship, it is necessary to take a step back. Equal protection of the laws—the constitutional expression of the Declaration’s central principle that “all men are created equal”—finds its origin in the social compact. James Madison frequently remarked that “all free and just government results from social compact.” And, at the heart of the social compact is the recognition that legitimate government must rest on the “consent of the governed.” The social compact contemplates a government that has as its principal goal the equal protection of the equal rights of all who tender their consent to be governed. The founding of any legitimate political community thus rests on the unanimous consent of those who agree to be governed. Once the community is established, it operates on the basis of majority rule, which, as Madison averred, serves as “a plenary substitute for unanimous consent.”

Citizenship is thus based on consent, not the accident of birth. Once the community is established, new members can join only with the consent of those who make up the community. Thus reciprocal consent—of the community and of the individual—is required. This is the genuine basis for constitutional government as understood by the framers of the Constitution (and the framers of the Fourteenth Amendment), and I am surprised that Epps seems to be wholly unacquainted with the foundations of the American Constitution.

Epps also seems wholly oblivious to the fact that his own understanding of the Fourteenth Amendment and citizenship is the common law understanding. He says that my explication of the Expatriation Act has no relation whatsoever to the Fourteenth Amendment. On the contrary, I used that discussion as additional proof that the framers of the Fourteenth Amendment did not adopt the common law basis for citizenship. As I demonstrated in my initial statement—a point that Epps conveniently ignored—the common law basis for citizenship was repudiated by the framers of both the Constitution and the Fourteenth Amendment and the authors of the Expatriation Act. This was preliminary to the conclusion that Wong Kim Ark mistakenly ruled that the common law was the basis for American citizenship. How can Epps at one and the same time support the Wong Kim Ark decision and maintain that the Fourteenth Amendment created a new theory of citizenship wholly unconnected to the common law?

An Abstract Argument?

For a variety of reasons—most of them having to do with the existence of slavery—citizenship was not defined in the Constitution until the Fourteenth Amendment. Its immediate impetus, of course, was to extend citizenship to newly freed slaves. Prior to the Fourteenth Amendment, federal citizenship was, in practice, determined by state citizenship—all citizens of a state were automatically deemed citizens of the United States. The Fourteenth Amendment reversed this relationship, making federal citizenship primary and state citizenship derivative. Without the primacy of federal citizenship, states could withhold state citizenship from newly freed slaves—and their descendants—thereby denying them federal citizenship and the rights that were the necessary incidents of federal citizenship.

Epps says that my close construction of the language of the first clause of the Fourteenth Amendment is merely an “abstract argument.” Does he mean that the Fourteenth Amendment has no necessary relation to the Constitution? To paraphrase former House Speaker Nancy Pelosi in a different context, “Are you serious?” We have a written Constitution, which, as Madison noted, is properly understood as a contract between “we the people” and the government, and in order that its terms not be forgotten or misconstrued, it was reduced to writing. Chief Justice Marshall captured Madison’s meaning when he remarked that “it cannot be presumed that any clause in the constitution is intended to be without effect.”

Interpreting the Constitution in any way that renders part of it without meaning is simply tampering with the fundamental law. Every part of the Constitution must have meaning, even those parts we may not like. It might seem trivial to some, but the Constitution of 1789 was the first written constitution in history, and it was this written contract that transformed the subjects of the common law into citizens of a constitutional republic.

The Fourteenth Amendment requires two elements for citizenship. A person must be (1) born or naturalized in the United States and (2) subject to its jurisdiction. I don’t think it is necessary to quarrel here with Epps about whether Ben Davis or Jacob Howard was the actual author of the text. Both were members of the Joint Committee on Reconstruction, along with the previously quoted Thaddeus Stevens and John Bingham. All agreed on the meaning of the jurisdiction clause. As Lyman Trumbull, chairman of the Senate Judiciary Committee, remarked, “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction of the United States.” None of these distinguished politicians ever said that “subject to the jurisdiction” meant merely subject to the laws or the courts.

It is not enough to consult a law dictionary under the entry “jurisdiction.” It is necessary to study the debates. The reason that diplomats are not subject to the jurisdiction is that they have no allegiance to the U.S. Foreigners who are merely sojourners in the United States have no allegiance to the United States but are subject to its laws. Understood in its original meaning, any children born to such temporary visitors would not be natural born citizens of the United States because their parents, while subject to the laws of the United States during their sojourn, did not profess allegiance to the United States.

As for Indians, Epps contends that they were an exception because they belonged to domestic dependent nations that possessed a quasi-sovereignty within the United States. But the Supreme Court rightly ruled in Elk v. Wilkins (1884) that Indians living apart from their tribes—even those who renounced allegiance to their tribes and declared allegiance to the United States—were not “subject to the jurisdiction” of the United States merely because they were subject to its laws. The Court ruled that the consent required for citizenship must be reciprocal, and Elk’s unilateral attempt to put himself within the jurisdiction of the United States was invalid. At one time, at least, the Supreme Court believed that “subject to the jurisdiction” did not mean simply subject to its laws. Epps would have us believe that illegal aliens can unilaterally put themselves within the jurisdiction of the United States—not only without its consent but in express violation of its laws—and confer citizenship upon their children without the consent of the United States. The citizenship clause cannot be read in a manner to dissolve the sovereignty of the United States. After all, a country that cannot determine who becomes citizens—or distinguish between citizens and aliens—is no longer sovereign.

Epps ad Absurdum

If we maintain, as Epps does, that all persons born within the geographical limits of the United States are automatically subject to its jurisdiction, then the jurisdiction clause is rendered superfluous by interpretation. If the framers of the Fourteenth Amendment understood that all persons born in the United States were automatically subject to its jurisdiction, they would have omitted the jurisdiction clause as redundant. But they did not. It is a canon of constitutional construction (if, that is, we still have a written constitution) that every provision of the Constitution must be given force and effect. Epps’s construction renders the jurisdiction clause null and void. Talk about tampering with the Fourteenth Amendment!

It is a fair question—although not one posed by Epps—to ask why, if the framers meant “allegiance,” they used the term jurisdiction. Senator Howard gave a credible answer: Allegiance, he said, was a term of art under the common law and would entail extending “subjectship” or citizenship to some persons without their consent. In other words, the framers of the Fourteenth Amendment sought to avoid all implications that citizenship was connected in any way with the common law of “birthright subjectship.” The Declaration and the Constitution rejected such feudal notions, and the Fourteenth Amendment’s citizenship clause must be read—as its framers intended—as a reaffirmation of that rejection. In this regard, I believe that Wong Kim Ark’s ruling that the Fourteenth Amendment adopted the common law basis for citizenship is utterly mistaken. And Epps’s insistence that the Fourteenth Amendment adopted a new and heretofore unknown theory of citizenship cannot be credited, unless he argues that it was adopted by the framers of the Fourteenth Amendment “unbeknownst to themselves.”

Citizenship and Sovereignty

No country is sovereign if it cannot control who becomes citizens. If we believe that citizenship is merely an accident of birth, that foreigners in the United States, legally or illegally, can confer American citizenship on children born within our geographical limits, then they become citizens without the consent of the nation. Consent must be reciprocal—a request by the individual and reciprocity on the part of the United States. In the case of illegal aliens, it is impossible to believe that the framers of the Fourteenth Amendment thought that they could become subject to the jurisdiction of the United States by violating its laws. But such is the argument of Professor Epps. I leave it to fair-minded readers to judge whether the homeopathic soup he has offered is substantial enough to sustain his argument.

NEXT: Garrett Epps responds to Edward Erler.