Proposed Bill Takes on 14th Amendment’s “Subject to the Jurisdiction” Clause

by Sharon Rondeau

(Dec. 14, 2023) — A bill introduced on December 8 in the U.S. House of Representatives seeks to define the scope of a key phrase of Section 1 of the 14th Amendment with the purpose of abolishing “birthright citizenship,” or the bestowing of citizenship on anyone born within the United States by whatever means.

The 14th-Amendment phrase “subject to the jurisdiction thereof” is not only often omitted from mainstream news reporting, but also from the webpage of the U.S. Senate and from other authoritative sources, thereby arguably misleading readers.

The U.S. Senate claims:

Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment granted citizenship to all persons “born or naturalized in the United States,” including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states.

Source: U.S. Senate

In actuality, Section 1 of the amendment begins:

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.

The bill’s originator, Rep. Brian Babin (R-TX36), in an interview Tuesday told Newsmax the practice of awarding U.S. citizenship to anyone physically born in the country arose from a “misinterpretation” of the 14th Amendment as part of “the policies” arising out of “the open border.”

In a press release dated December 8, Babin described his bill as intended to “end birth tourism” and “combat illegal immigration,” which has reportedly reached record-breaking levels under the Biden White House.

In his statement, Babin identified “Section 1” of the 14th Amendment as having become subject to “misapplication,” resulting in the designation of children born “to foreign nationals – from illegal migrants to tourists to refugees – ” as U.S. citizens by “birthright.”

The bill is supported by 21 other congressmen, the press release states, including Rep. Byron Donalds (R-FL19), Rep. Bob Good (R-VA5), Rep. Chip Roy (R-TX21), and Rep. Eli Crane (R-AZ02).

In a statement on the proposal, Crane claimed “birthright citizenship” to be a “scheme” encouraged by “illegal immigration.” If passed, he said, the bill “keeps our immigration law consistent with the Framers’ original intent…”

The 14th Amendment was passed in 1868 in the wake of the American Civil War, while in the U.S. Constitution, ratified in 1789, the Framers assigned Congress, the legislative branch of the federal government, as the entity “to establish a uniform Rule of Naturalization” in Article I, Section 8.

In 1790, Congress passed its first “naturalization” act, which required a two-year residency in the U.S. in order for an “Alien” to apply for citizenship, that he be “under the jurisdiction of the United States” and a person “of good character.”

As has been discussed in depth by this publication, the 1790 law also appears to have sought to expand the class of citizens known as “natural born Citizens,” a term used in the singular form in Article II, Section 1, clause 5 of the Constitution as one of three presidential requirements imposed by the Framers.

The statute, which was fully repealed in 1795, stated:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

According to Congress on its website, the 1795 law “amended” the 1790 law “by requiring an applicant to submit a declaration of intent to become a citizen at least three years before naturalization, and extending the minimum residence requirement to five years.⁵“

Unlike the 1790 statute, the more expansive 1795 statute increased the residency period to five years, required that an applicant be “of good moral character” and renounce any “title or order of nobility” he might have held in his home country.

The congressional webpage does not clarify that the 1790 Naturalization Act was fully repealed as stated in the last paragraph of the 1795 Act. Moreover, the new law contains the provision that “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States” rather than “natural born Citizens.”

Both laws stipulated that “that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States,” with the exception being the addition of a comma following “persons” in the 1795 law.

Additional laws regarding the naturalization process followed in 1798, 1802, 1804 and 1855, as well as the 1952 Immigration and Nationality Act (INA).

Although Babin stated in his press release he “hope[s] to move it swiftly through the House of Representatives,” he told Newsmax he harbored doubts as to its passage by the Senate if, in fact, it passes the House.

At present, House Republicans hold an eight-person majority with 221 seats vs. Democrats’ 213 seats. Former Speaker of the House Rep. Kevin McCarthy is resigning at the end of the month, and on December 1 the House voted to expel Rep. George Santos (NY3) for alleged ethics violations and possible violations of campaign laws.

In August 2020, then-Chapman University Law School Dean John Eastman, a Trump ally who may lose his California law license over accusations he attempted to “keep his client, (President Donald) Trump, in power despite having lost the 2020 election,” suggested in a Newsweek essay that Kamala Harris might not only fail to qualify as a “natural born Citizen” to serve as vice president as the 12th Amendment requires, but also as a U.S. “citizen” given the fact that her parents, who were both in the country on student visas at the time of Harris’s birth, might not have been subject to the “jurisdiction” of the United States.

“The language of Article II is that one must be a natural-born citizen,” Eastman wrote. “The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that ‘all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.’ Those who claim that birth alone is sufficient overlook the second phrase. The person must also be ‘subject to the jurisdiction’ of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect…Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.”