Michael L. Rosin
In a recent Balkinization post Gerard Magliocca noted that he could find no example in federal law of “subject to the jurisdiction” not meaning “’subject to the law’ … or ‘subject to legal authority’ of the United States.” This post discusses the use of “subject to the jurisdiction” in an 1872 statute granting citizenship from birth. This was the first such citizenship legislation enacted into law after the drafting of the Fourteenth Amendment. It demonstrates that the phrase “subject to the jurisdiction” meant “subject to the legal authority of the United States.” If the phrase had meant “and not subject to any foreign power,” (the interpretation the Trump Administration gives to the phrase in the Fourteenth Amendment), the 1872 legislation would have had no effect.
The Fourteenth Amendment’s Citizenship Clause
states
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 a filing in
one of the 2025 Birthright Citizenship Cases the Trump Justice Department
asserts
The phrase “subject to the
jurisdiction thereof” in the Fourteenth Amendment is best read to exclude the
same individuals who were excluded by the
[Civil Rights] Act [of 1866]—i.e., those who are “subject
to any foreign power” and “Indians not taxed.” (at 11)
A subsequent Trump Justice
Department filing notes that the current birthright
citizenship statute employs the exact phraseology of the Citizenship Clause
“suggesting that Congress regarded the Act’s ‘not subject to any foreign power’
requirement as consistent with the Amendment’s ‘subject to the jurisdiction’
requirement.” (at 21)
The filing continues
in using the exact text of the Citizenship Clause in the
[current statute], Congress imported its exact scope. See Taggart v. Lorenzen,
587 U.S. 554, 560 (2019) (“When a statutory term is obviously transplanted from
another legal source, it brings the old soil with it.”) (at 40)
Congress crafted the current birthright
citizenship statutory text in 1940,
seventy-four years after it crafted the text of the Citizenship Clause in 1866.
On May 18, 1872 President Grant
signed into law legislation declaring
That
all persons born in the district of country formerly known as the Territory of
Oregon, and subject to the jurisdiction of the United States at this
time, are citizens of the United States of America in the same manner as if
born elsewhere in the United States. (Sec. 3)
This was the first such
citizenship-granting legislation enacted into law after the drafting of the
Citizenship Clause. To paraphrase the Trump Justice Department’s language, “in using
the exact text of the Citizenship Clause in this 1872 statute, Congress
imported its exact scope.” This text, crafted a mere six years after the
drafting of the Citizenship Clause, provides a contemporary perspective on the
meaning and scope of the phrase “subject to the jurisdiction thereof” in the
Citizenship Clause.
Congress
crafted the Oregon Citizenship Legislation in response to the case of McKay
v. Campbell. (16 F. Cas. 161 (D. Or. 1871)) William C. McKay had been
born in 1824 to a British Canadian father and a native mother in what is now
Astoria, Oregon, on the southern bank of the Columbia River, in what was then the
Oregon Country. Although the Oregon Country was jointly occupied by the
United States and Great Britain when McKay was born, it would remain beyond the
jurisdiction of the United States until 1846. In late 1845 President Polk told
Congress “[American citizens in Oregon are anxious that our laws should be extended over them[.]” Before that extension children of American citizen fathers in the
Oregon Country were born citizens of the United States thanks to the 1790
Naturalization Act that granted birthright citizenship to children of such
parentage born “out of the limits of the United States.” William
McKay had not been born to an American citizen father (and the Oregon Treaty of 1846 did not make him or
anyone else a citizen).
In
1871 the United States District Court for the District of Oregon held (McKay at 163) that McKay
was not an American citizen and that he was born subject to the
jurisdiction of Great Britain, a foreign power. Judge Deady’s McKay opinion is laden with the language of allegiance
and obedience. That was unnecessary given that the Oregon Country
was not within the jurisdiction of the United States when McKay was born.
Deady’s opinion is a matter for another day. Our concern is with Congress’s
response to McKay’s case.
On February 23, 1872 Oregon Republican
Henry Corbett told the Senate that his constituents had petitioned him
asking
that the right of suffrage and citizenship be extended to certain persons who
were born in the Territory of Oregon previous to the treaty which was ratified
with Great Britain in 1846, whose fathers were English and mothers were members
of the various tribes of Indians inhabiting that State.
Corbett introduced a bill limited to
persons with the parentage just described born in the Oregon Country prior to
ratification of the Oregon Treaty of 1846 and “declared” them “citizens of the
United States of America.” As introduced, the bill made no reference to whether
or not such persons were presently subject to the jurisdiction of the United
States.
The Judiciary Committee filled that hole
by the time it reported the bill back to the Senate. As amended the bill declared
That
all persons born in the district of country formerly known as the Territory of
Oregon, and subject to the jurisdiction of the United States at this time, are
citizens of the United States of America in the same manner as if born
elsewhere in the United States.
Oregon Democrat James Kelly understood
how this provision applied to William McKay and others born under similar
circumstances and presently subject to the
jurisdiction of the United States. He told his colleagues:
A man was born at Astoria,
then known as Fort George, beneath the British flag, and, as a matter of
course, being the child of a British subject, and born without the allegiance
of the United States, because he was not born within the allegiance of the
United States, in order to make him a citizen, he was born within the
allegiance of the king of Great Britain at the time, and it was so held by the
court, and properly held. We had no right to make the children of British
subjects American citizens; no more had they a right to make the children of
American parents subjects of Great Britain. Both held the territory in common;
it was a joint occupation, and in order to be a citizen of the United States he
must have been not only born within the United States, but born within the
allegiance of the United States. The child of a British minister born in this
city is a British subject. It is true he is born in the United States, but he
is born without the allegiance of the United States; and so it was there in
Oregon. They were British subjects, and their children still remain so. There
is no question that those who were born of American parents were American citizens;
but the class to which this bill refers are the children of British subjects,
born after the treaty of 1818 and before the treaty of 1846. That is all there
is of it.
Kelly
clearly recognized that the phrase subject to the jurisdiction of the
United States in the bill could not possibly
mean “not subject to any foreign power.” The phrase simply referred to
persons subject to the laws of the United States by virtue of their presence in
the United States. The whole point of the bill was to grant citizenship to
persons who were subject to a foreign power—because they had been born
as British subjects.
No one challenged Kelly’s
interpretation. The only question debated was whether this was a naturalization
bill. It was not. It offered citizenship retrospectively to all persons
appropriately situated and, as Lyman
Trumbull noted, did “not depend on their claim.”
After this
short debate the Senate chose
to incorporate this statutory text in H.R. 1654, an
appropriations bill. That is how the Oregon Citizenship legislation of 1872
became law (Sec. 3).
If the Citizenship Clause had
been intended to exclude persons “subject to any foreign power,” as the Trump
Justice Department asserts, then it would have made no sense for Congress to
transplant the text of the Citizenship Clause into the 1872 legislation,
because the point of that law was to grant citizenship “as if born […] in the United States” to British subjects like William
C. McKay. But Congress did transplant the text of the Citizenship Clause
into the 1872 legislation, just six years after the Congress that wrote the
Citizenship Clause in 1866. This is further evidence that when crafting the
Citizenship Clause Congress did not import the phrase “not subject to
any foreign power” from the Civil Rights Act of 1866 into the constitutional
text controlling the Birthright Citizenship Cases.
Michael Rosin is an independent
scholar whose work focuses on the electoral college and everything it is built
on. You can reach him by e-mail at mlrosin@att.net.