According to the relevant part of the 14th Amendment to the U.S. Constitution, “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.”

What does “subject to the jurisdiction” mean? That is a tough one. It has been fully and vigorously debated. Perhaps it is better to start off with people who are clearly not “subject to the jurisdiction” of the United State government.

For example, a foreign ambassador now, temporarily, residing in this country is not subject to its jurisdiction. Rather, he is subject to the jurisdiction of his home country, the one he represents while here. We can go so far as to say that his home and office for legal intents and purposes is really a part of the foreign country which he exemplifies. Foreign diplomats have special license plates and are often not subject to the traffic rules and regulations that apply to everyone else. This underscores their non-citizenship.

What about an enemy female soldier who becomes pregnant while in captivity by our armed forces? Again, no. She is a citizen of this other nation and her baby will not become a U.S. citizen when born here.

Perhaps we are now ready to assay a guestimate as to how to interpret “subject to the jurisdiction.” (Apart from dual citizenship) it means that a person’s citizenship loyalty belongs to one and only country and that is to one that has jurisdiction over him.

The Indian Citizenship Act was passed in 1924. Before that time Native Americans were considered members of their respective Indian Nations, not America. Afterward, by legislative enactment, their political focus was transferred to the U.S.

What about illegal immigrants? It is clear where we are going with this. They owe their political allegiance (to the extent that anyone can owe any such thing to any government) to the foreign country from which they emigrated. Ditto for their offspring, even if born in the U.S. Parents can only transfer to their progeny what they themselves “own.” The illegal immigrant by definition has broken the law that would have otherwise allowed him to become a legal immigrant and eventually a full-blooded citizen.

How does all this jurisdiction business impact slaves? Their importation was legal until 1808. Thus, there can be no question about their legitimate occupancy of this country and that for their children too. These people were not “illegal immigrants.” However, after that time, they were brought here against the law. Does this mean that their continued presence in this country, and that of their progeny, is illicit? Of course not. They lacked any and all mens rea. They were brought here against their will. They were kidnapped, in effect. Thus there can be no doubt that they are “subject to the jurisdiction” of the United State government.

But no illegal immigrant can claim the same status. They initiated their arrival on our shores. Of course, their very young children were brought here without any sort of consent, but they cannot garner from their parents who are lacking this connection.

Adult slaves after 1808 were here illegally. But they were brought here against their will and thus cannot be considered guilty of any law-breaking. Thus they, but not present-day or previous illegal immigrants, are “subject to the jurisdiction” of the United State government.

Image: Rowan J LP