“Political Jurisdiction” and Birthright Citizenship

by Ryan on August 13, 2010

in History,Immigration,Law,Politics

Arguments about whether or not children of illegals should be afforded citizenship rights because they were born within America’s territorial jurisdiction continue.  Does territorial jurisdiction also mean political jurisdiction?  Should that distinction matter?  I think we really do need to sort this out.

Perhaps we can without messing with the Constitution.  The Supreme Court may already have dealt with this issue around the time of the 14th Amendment‘s passage in relation to Amerindians who had no allegiance to America but were born in our territory (“anchor babies” being born, say, to Mexican nationals who still have legal status in Mexico but not in America, are in a similar boat).  Here’s columnist Joseph Reisert’s take:

In… Elk v. Wilkins (1884), the Supreme Court held that… “the evident meaning” of the words “subject to the jurisdiction thereof” was “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.”

On the grounds that members of Indian tribes, not subject to federal taxation, were not “completely subject” to the jurisdiction of the United States, the court concluded that John Elk, though born within the boundaries of the United States, had not become a U.S. citizen at birth, because he was an untaxed Indian.

What’s surprising is that Senate Majority Leader Democrat Harry Reid thought along these lines back in 1993.  Strange.  In fact, even the author of the 14th Amendment himself believed that aliens, foreign ministers, children of ambassadors would also not be given automatic citizenship.

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