To my 2000 article Intent of the Fourteenth Amendment was to Protect All Rights I make the following clarifying points:
1. The 14th Amendment did not confer U.S. citizenship on individuals
born on U.S. soil, whose parents were not subject to the
jurisdiction of a foreign power. That was already the established
rule, inherited from English law, and U.S. citizenship arguably
began on non-state territory with adoption of the Articles of
Confederation (ratified 1781) and the adoption of the Northwest and
Southwest Ordinances (1787), which transferred sovereignty of the
western territories, previously subject to conflicting claims by the
states, to the emerging United States (a term that originated during
the earlier (1774) Articles of Association under which the War of
Independence was fought.
2. Adoption of the U.S. Constitution made all persons born on the
soil of any of the states U.S. citizens as well as those born on any
of the non-state territories, and conferred on Congress the power to
make rules for naturalization.
3. The U.S. Constitution put restrictions of the states in Art. I
Sec. 10, and since all restrictions on government powers are rights,
or more precisely, immunities, it thereby established rights of U.S.
persons (not just citizens) in the states against their states,
justiciable in U.S. courts.
4. The language of the Bill of Rights (1791), except that of the
First Amendment, seemed to apply equally to the U.S. and state
governments, and like Art. I Sec. 10, to make an exception to the
omission from Art. III of federal court jurisdiction over cases
between a citizen and his state, but it attached rights to persons,
not just citizens. (The Framers, in writing Art. III, presumed a person who was a resident of a state would also be a citizen of that state, and did not anticipate states would later assert a different position.)
5. However, the states defined state citizenship as well, and in
ways that did not include the same individuals as were included in
U.S. citizenship, such as blacks.
6. Some of the southern, slaveholding, states belatedly realized
that if the Fifth Amendment Due Process Clause applied to them, and
federal courts had jurisdiction, slaves could sue in federal courts
for their freedom, as deprivation of liberty without due process of
7. This led to two main cases. Barron v. Baltimore (1833)
and Dred Scott v. Sanford (1857). In Barron, slavery
was not the issue. The Takings Clause of the Fifth Amendment was the
issue. But it was realized, when it got to the Supreme Court, that
if the Court decided in favor of Barron, it would establish
a precedent that would allow slavery to be challenged, so it decided
against him, and CJ Marshall (wrongly) held the U.S. courts did not have
jurisdiction to decide cases over the Bill of Rights between a
citizen and his state.
8. In Dred Scott slavery was the issue. The problem was that
the federal courts could not avoid jurisdiction because persons of
different states were the opposing parties. The Bill of Rights, and
other provisions of the U.S. Constitution, associate rights with
personhood, not citizenship, and it was already established
precedent that blacks were persons, so CJ Taney for the U.S.
Supreme Court weaseled out of the trap by (wrongly) holding that blacks were
not and could not be citizens, and thus, federal courts would not
have jurisdiction, since Art. III uses the term "citizen" instead of
"person" in defining jurisdiction. The effect was to make the rights
of persons not citizens non-justiciable in federal courts, contrary
to the obvious intent of the Bill of Rights.
9. By the time the view developed that both precedents had to be
overturned, and that it would take an amendment to do that, many
more precedents had been built on those two cases. So it was not
enough for an amendment to just refer to the two cases and
explicitly overturn them. It had to adopt general language that
would cover the entire system of precedents based on them, past and
10. That left the problem that the states could not be allowed to
deny rights to persons on their territories by defining them as
noncitizens. That could make the U.S. Constitution a nullity in such
states, by doing something outlandish like defining Jim Bob and Red
Neck as the only citizens. So what the 14th Amendment did do was
make all U.S. citizens state citizens if they reside in the state
(although it neglected to define residency). That included blacks.
However, it also neglected to make clear that most rights belong to
persons and not just citizens.
11. Some would argue that the language they chose was not very
clear, and that a better wording was needed, but if one tries to
find better language, it is not all that easy. (If I had been there,
I could have done it, as I have above, but I was born too late.)
12. There is actually no U.S. Supreme Court decision that sustains
the offspring born on U.S. soil of parents who have entered U.S.
soil illegally to be natural born U.S. citizens. Such parents are
arguably not "subject to the jurisdiction" in that they did not seek
and obtain consent to enter. All the cases have either been parents
who entered legally, or for which the legality of their entry was
not before the court. There is a presumption that those born on U.S.
soil are natural born citizens, subject to proof to the contrary,
and in the absence of someone to argue that position, the
presumption stands. If someone wants to get a precedent to that
point, one needs to take a case to the U.S. Supreme Court.
Constitutional education, history, commentary, reform, compliance, and interpretation.
- ▼ 2014 (11)
- ► 2013 (24)
- ► 2012 (35)
- ► 2011 (57)
- ► 2010 (38)
- ► 2009 (12)
- ► 2008 (10)
- ► 2007 (9)
- ► 2005 (9)
- ► 2004 (12)