The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate – Sen. Wade’s Proposal
The Debate in the Senate - Sen. Howard’s Amendment
The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction
The Debate in the Senate - Sovereignty Over the Soil
U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
U.S. vs. Wong Kim Ark - Rejection of Jus Sanguinis
U.S. vs. Wong Kim Ark - The Slaughterhouse Cases
U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof
After dismissing Judge Miller’s statement in the Slaughterhouse Cases, the Wong Court turned to another case which they described as “the only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof.’” That case was the 1884 opinion given in Elk v. Wilkins.
The Elk Court determined that a person born to an Indian tribe was not entitled to birthright citizenship because he was not born subject to the jurisdiction of the United States. According to the Elk opinion:
“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof' within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”
The key phrase in this explanation is the parenthetical explanation that the Indian tribes were alien powers. Thus, the Court reasoned that, even though the tribes themselves were dependent on the United States, the individuals within those tribes were actually alien subjects and not subjects or citizens of the United States. The Court compared the Indians with “subjects of any foreign government born within the domain of that government.” As far as their citizenship status was concerned, they were in the same condition as a child born within the borders of a foreign government.
The Wong Court recognized this reasoning in the Elk opinion, and observed that the Elk opinion was founded on the grounds
“that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States.”
The Indian tribes of that time were “alien nations” even though they were not “foreign States.” Their lands were possessions of the United States. They occupied those lands with the permission of the United States. But they were still alien nations with their own governments and laws. Therefore, every child born to a member of an Indian tribe was born as a subject or citizen of that tribe and not as a citizen of the United States just as if that tribe were an alien nation outside of the borders of the United States.
A more recent parallel to the relationship which existed between the Indian tribes and the United States can be seen in the occupations of Germany and Japan after World War II. In the American occupation zone of Germany, and throughout occupied Japan, the German and Japanese governments were subject to the control of the United States. In both cases, the United States initiated and enforced political and economic reforms that the occupied regions could not refuse. However, the children born to German or Japanese parents during these occupations did not receive birthright citizenship because Germany and Japan remained alien nations even though they were occupied by and under the control of the United States. Therefore, the children born within the American occupation zone of Germany and the children born within occupied Japan were born under alien jurisdiction and not under American jurisdiction.
Similarly, the Indian tribes were a conquered people whose governments were subject to the control of the United States in accordance with various treaties. And just as in the American occupation zone of Germany and in occupied Japan, the children born to the members of the tribes did not receive birthright citizenship because those tribes remained alien nations even though they had been conquered by and were under the control of the United States. Therefore, the children born among the Indian tribes were born under alien jurisdiction and not under American jurisdiction.
After explaining that the alien nation status of the Indian tribes was the reason for the Indian exception to birthright citizenship, the Wong Court returned to the question of whether aliens residing in the United States were subject to the jurisdiction of the United States. The Court concluded that:
“The real object of … the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words … the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”
To support this conclusion the Court referenced the case of The Exchange v. McFaddon. The Wong Court pointed out that:
“The grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning.”
The Wong Court noted that the McFaddon opinion did not touch on the question of jurisdiction over the Indian tribes and that it did not consider the question of jurisdiction over areas occupied by a hostile military force, but they also noted that:
“In all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.”
The general principle of jurisdiction laid down in McFaddon was:
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”
In other words, the McFaddon Court claimed that no one within the territorial boundaries of the United States could be exempted from the jurisdiction of the United States unless the United States government had given them permission for that exemption. This means that every individual within the borders of the United States is subject to the jurisdiction of the United States by default. That is the natural condition which exists between an individual and the government of the region in which he is present. To become not subject to the jurisdiction of that government one must receive something from the government that he cannot obtain by his own power. An individual must have the government’s consent before he can be within the government’s geographical boundaries without being subject to that government’s jurisdiction.
The McFaddon Court continued by explaining why ambassadors and foreign ministers are granted this exception by implication because they are directly employed by their own government as its representatives. They then turned to the question of why other aliens are not excepted from the jurisdiction of the government of the land in which they are temporarily located. According to the McFaddon Court,
“When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.”
The McFaddon Court noted that there was not a single, logical reason to assume that aliens other than ambassadors and foreign ministers were not subject to the jurisdiction of the government of the land in which they are temporarily located. The Court even went so far as to say that mere entrance into a nation “can never be construed to grant such exemption.” There must be an additional, declared consent from the government of the land for an alien within that land to be exempt from the government’s jurisdiction.
The Wong Court noted these explanations from the McFaddon Court and said of them that:
“In short, the judgment … declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied … and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.”
In other words, every alien within the borders of the United States is subject to the jurisdiction of the United States unless that alien has received permission from the United States to be exempt from its jurisdiction. The only aliens which receive an automatic or implied exemption are ambassadors and foreign ministers. All other aliens must receive expressly declared consent from the United States before they can be exempted from the jurisdiction of the United States.
The Wong Court found additional confirmation of this view in the language of every single naturalization law which had been passed by Congress. The Court noted that all of our naturalization laws required those applying for citizenship to have resided for a certain length of time “within the limits and under the jurisdiction of the United States.” The Court reasoned from this requirement that the phrase “under the jurisdiction of the United States” in our naturalization laws must therefore apply to aliens who had not yet renounced their allegiance to a foreign government.
In consequence of these considerations, the Wong Court concluded that:
“The words ‘in the United States, and subject to the jurisdiction thereof’ in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words ‘within the limits and under the jurisdiction of the United States,’ and the converse of the words ‘out of the limits and jurisdiction of the United States’ as habitually used in the naturalization acts.”
The Court had recognized an unbroken chain of evidence beginning long before our nation’s independence and continuing up to their time confirming that every individual within the borders of the United States was subject to the jurisdiction thereof except for individuals in three very specific and very limited classes. First, the Indians were not subject to the jurisdiction of the United States because each of their tribes was still an alien nation even though they were a conquered people. Second, hostile enemy military forces were not subject to the jurisdiction of the United States. And third, ambassadors and foreign ministers were not subject to the jurisdiction of the United States because they had consent from the government to be present without subjection. No other individuals or classes of individuals within the geographical borders of the United States were exempt from being subject to the jurisdiction thereof.
Because of this lengthy chain of evidence, the Court declared that:
“It is impossible to construe the words ‘subject to the jurisdiction thereof’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.’”
Thus, according to the Wong Court and in light of some very compelling evidence, the phrase “subject to the jurisdiction thereof” in the 14th Amendment currently includes every alien within the geographical borders of the United States except for hostile enemy combatants engaged in war against the United States and ambassadors and foreign ministers engaged in diplomatic relations with the United States. All other aliens currently within our borders are subject to the jurisdiction of the United States.
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