Monday, November 12, 2007

Subject To The Jurisdiction Thereof

Ah, yes, the ever-so-troubling 14th Amendment.

As I have mentioned in other places, I was given The Heritage Guide to the Constitution as a gift a couple months back, and I have not been the same since. While there is much ground to cover with respect to the 14th Amendment, for this brief post I'm going to focus only on the Citizenship Clause, as it is called.

I could say a bit on the topic, but not any better than this from the Guide itself:

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase "Indians not taxed." Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that "Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this Amendment, born subject to the jurisdiction of the United States." Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else... subject to the complete jurisdiction of the United States." Indians, he concluded, were not "subject to the jurisdiction" of the United States because they owed allegiance - even if only partial allegiance - to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically "subject to the jurisdiction" of the United States. And "jurisdiction" did not simply mean subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, "jurisdiction" meant exclusive "allegiance" to the United States.

What I find interesting about this is that the historical record is there for the reading, and can easily verify original intent. Perhaps, in time, we may yet see this Republic turned away from the path to national suicide that we're on. While insisting on such antiquated ideas as allegiance will surely qualify me as a "hater" to someone, I can think of no simpler means of correcting some of the problems resulting from the 14th Amendment than insisting on the plain, simple and original intent of the authors of the Amendment.


Terry Morris said...

Nice post, Mike. You know you always capture my attention when you go to talking about interpretations of the language of the fourteenth amendment. (And as I've said many times before, this idea of "dual citizenship" is a completely illegitimate one. It doesn't matter whether it's applied to Indians or anyone else.)

As Auster said to me some time back on the subject (and this is a paraphrase): "The authors of that amendment really should have thought the language through better." I've always agreed with that assessment, and indeed, it is something of a simplification of what I've been saying for ... several years now. Remember the short discussion I had with the woman at the Federalist Patriot, what, three years ago now? Her name eludes me at the moment (I'd have to check my archives), but the point is she and I both agreed, as I recall, that the language used sort of obscured the meaning and original intent of the amendment. And I've said several times before that I indict the intent of no-one on this question; that the intent was most likely good, but the road to h*ll has been paved with those good intentions nonetheless.

It is nice to have the historical evidence on your side, though. I'm still thankful that Auster recommended Berger's book, Government by Judiciary to me. And I highly recommend it to anyone interested in this question of the original intent of the framers of the fourteenth amendment.


Michael Tams said...


Thanks for the comments. I'll have to add Berger's book to my growing list.

I think we've discussed language and its use and misuse before, but I'm of the growing opinion that we can't be too clear in the language we use - trusting that our words will be understood is a pretty risky proposition, given how language gets warped with the passage of time.


Terry Morris said...

I agree, Mike, we need to be as precise in our use of language as we possibly can be. Or, in other words, we need to be as precise and accurate as the language itself will allow.

It can't be helpful to that effort, however, that we have immigrants coming here in droves who know nothing or very little of the English language.


Anonymous said...

its a nice things when you go to the talking about interpretations of the language of the fourteenth ... i really ..thanks


Anonymous said...

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