Another take on the 14th Amendment

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” is the first sentence of the 14th Amendment to the U.S. Constitution. No one can know how “all,” “naturalized” and “jurisdiction” were construed without understanding the circumstances faced by the people involved at that time in our history. Reading their debates, speeches and writings provide the context.

I have no doubt that (1) “all persons born subject to the jurisdiction thereof” or (2) “all persons nationalized subject to the jurisdiction thereof” are citizens. The choice “all persons born” was adopted because of Reconstruction and the concern of how to treat “freed slaves” in each state. The second choice of “all persons naturalized” was determined under the “uniform rule of naturalization” enacted by statute in 1790 and its repeal and clarification in 1795. Under the 1790 provision, only “a free white person” was eligible to be naturalized.

The phrase” subject to the jurisdiction thereof” restrains both choices and is key to their meaning. This phrase better satisfied cynics and the federal government takeover of civil rights, which included US citizenship.

There was no birthright rule in the Constitution before 1866 because the authority to decide between “alien and citizen” was relegated to each state. After the 14th Amendment was enacted each state continued to broaden the definition of citizen to suit their own needs. This watered down the original meaning, and the federal government was too weak to safeguard it.

I believe the framers used “jurisdiction” to mean “full and complete allegiance” to all branches of the federal government, including Congress, the Legislature, and the Executive. So, the meaning was not just a legal one, but political as well. To me “jurisdiction thereof” is equivalent to total allegiance to the US and absolutely no allegiance to anybody else.” Read the last sentence again and let it sink in.

Native Indians were excluded under this clause because the U.S. dealt with them through treaty. And since we have treaties with all nations whose immigrants/aliens have entered the U.S., they too should be dealt with through an applicable treaty. Immigrants/aliens who are in the U.S. are subject to follow our laws (legal aspect), but the US must treat them according to agreements with the country they have pledged allegiance (political aspect). But this is tantamount to each immigrant/alien being under the jurisdiction of his country through citizenship of that country until he rejects that citizenship for another country according to that country’s immigration and naturalization policy.

So, all persons born or naturalized are US citizens IF AND ONLY IF they are under the full and complete jurisdiction of the U.S. Thus, an alien and his children are subject to the jurisdiction of their country until naturalized because jurisdiction of an alien is determined by treaty. Ergo, aliens are NOT” subject to the jurisdiction thereof” as required in the 14th. If you don’t agree, counter my claim.

Timothy C. Tiches

Nashua