Friday, November 2, 2018

"Subject To The Jurisdiction" -- What Do The Words Mean?


President Trump, in his peculiarly Trumpian fashion, ignited a firestorm of debate and controversy when he speculated in an interview with Axios that he would end so-called "birthright citizenship" with an executive order. In the world according to Trump, he can end that practice with a single stroke of his pen.

Trump's speculation is controversial not because, as many commentators have suggested, the law surrounding birthright citizenship is settled and beyond contestation, but because in fact there are large swaths of gray surrounding the policy.  As I pointed out in my last posting, the existing case law is far narrower in its language and scope than many want to believe.

The one point of agreement on all sides is this: the nub of this question is the meaning of a particular phrase in Section 1 of the Fourteenth Amendment--"and subject to the jurisdiction thereof".  For clarity, here is the full first sentence of that section:
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. 
In order to fully apprehend the legal principles established by this sentence, we must first understand its grammar.  The subject of the sentence is "persons", the verb is "are"--present tense of the infinitive "to be"--and the modifiers of "persons" are "All", "born or naturalized in the United States", and "subject to the jurisdiction thereof." The complement to the verb is "citizens of the United States and of the State wherein they reside."

With this structure, "subject" is an adjective (because it modifies the noun "persons").  Here we must now ask the question: how does this adjective modify persons?  We can ascertain that by inspecting the other adjective and participle that also modify "persons", "born" and "naturalized".  An equivalent construction for each would be "All persons who are born..." and "All persons who are naturalized...." Given the parallel grammatical structure employed, we may apply this same alternate construction to "subject"--All persons who are subject to...."

That "subject" is an adjective is of crucial importance, because it governs what we can make of the prepositional phrase "to the jurisdiction thereof".  If "subject" were a verb, we would have to apply a transitive verb meaning, of which Merriam-Webster offers up three:
1a : to bring under control or dominion : SUBJUGATE
b : to make (someone, such as oneself) amenable to the discipline and control of a superior
2 : to make liable : PREDISPOSE
3 : to cause or force to undergo or endure (something unpleasant, inconvenient, or trying)
However, as an adjective "subject" has these meanings:
1 : owing obedience or allegiance to the power or dominion of another
2a : suffering a particular liability or exposure
b : having a tendency or inclination : PRONE
3 : contingent on or under the influence of some later action
Which of these meanings do we apply to the first sentence of the Fourteenth Amendment?  The general principle is that dictionary definitions are arranged chronologically--that is, the oldest (and therefore the original) definition appears first, and subsequent definitions appear thereafter. Absent any clear contextual reference to infer otherwise, we should generally apply that first, or denotative, definition. Thus, in the Fourteenth Amendment, "subject to the jurisdiction thereof" means "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

Moreover, we have positive proofs this is the correct definition.  One of the Fourteenth Amendment's primary authors, Senator Jacob Howard of Michigan, made this declaration regarding the phrasing:
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Senator Lyman Turnbull, another of the principle framers of the Fourteenth Amendment, and the actual author of the "subject to the jurisdiction thereof" phrase, amplified Senator Howard's commentary thus:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
From these proofs that "subject" is to be understood as "owing obedience or allegiance", we may also conclude the proper meaning of "jursidiction" in this regard is the second "the authority of a sovereign power to govern or legislate". The original definition of jurisdiction is focused on the operation of courts and judicial bodies, which is simply too narrow a definition to be coherently applied in this sentence.  

These definitions also comport with the notions of "subjectship" that formed the bulk of the reasoning in the pivotal Supreme Court Case United States v Wong Kim Ark (169 US 649 (1898)). Much of the reasoning in English common law in this realm dealt not with citizenship per se, but with subjectship--i.e., under what circumstances was a person deemed a subject of the British Crown?  

Interestingly, a number of legal commentators disregard both the grammatical construction of that first sentence in the Fourteenth Amendment and the substantive ramifications thereof.  Attorney and legal scholar James Ho, writing in the Los Angeles Times, offered this assessment:
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.
There are two problems with this view.  First there is the obvious contradiction when considering the particular case of the illegal alien: The dictate of the law--and therefore of the orders of any court--is that said illegal alien not be in within the borders of the United States at all; if the requirement is obedience, and the person refuses to obey this most basic of instructions, the clear implication is they are placing themselves beyond the obedience necessary for conferring birthright citizenship.

Further, this view ignores the implicit social contract in subjectship as defined by Sir William Blackstone and referenced in Wong Kim Ark (emphasis added):
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto
In other words, obedience and allegiance arise from the premise that the duty of the sovereign authority is to protect the inhabitants of the realm.  Yet the illegal alien is not protected by any sovereign authority--quite the contrary, if placed within the grasp of the sovereign authority he is presented with detention and deportation. If a person, at his birth, does not derive protection from the sovereign authority, how can there be a consequential owing of either obedience or allegiance, and thus a basis for bestowing citizenship?

Akhil Amar similarly ignores both the documented legislative background of the Fourteenth Amendment and the legal implications of the grammatical construction, even as he relies on the same formulation to (mis)state his case:
 ...the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.
Amar is relying on a specious inference that "subject to" relies on the secondary connotative meaning "suffering a particular liability or exposure." Even if we did not have the commentaries of the Fourteenth Amendment's authors declaiming this very posture, the grammatical construction of this first sentence within the Amendment simply does not allow for the expansive interpretation Amar desires. Again we are confronted with the paradox: if the test is obedience to the law, the illegal alien daily fails that test, for his presence is by definition a defiance of the law. If the test is allegiance, the illegal alien fails that test as well, by that same defiance. As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

As I have stated before, "...immigration is almost exclusively a matter of law, of what the law is, and what the law should be." Citizenship, birthright and otherwise, is likewise a matter of law--of specific law, of statutes, and precise language within the Constitution. All law is first and foremost an exercise in language--an assemblage of words whose meanings combine to elucidate the principles by which a society is to be governed.  As laws are devised in a specific place and time, forever fixed to that place and that time, so too is the language of the law fixed to that place and that time. It is quite proper to debate what the language of the law (and the law itself) should be, but that debate is fatally flawed if we conflate what the language is and what we desire the language to be.

If one wishes to discuss or debate a law, one must first understand the language of that law.  A law says whatever the words mean. This has always been the order of things; this shall always be the order of things.

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