Plyler v. Doe (1982) and Jurisdiction

-Submitted by David Drumm (Nal), Guest Blogger

Plyler v. Doe was a case in which the Supreme Court decided that, under the Equal Protection Clause, Texas could not deny the children of undocumented aliens access to public schools.

The vote was 5-4. More interestingly, by a vote of 9-0, the court addressed the meaning of “jurisdiction” as found in the Fourteenth Amendment.

Section I of the Fourteenth Amendment uses the word “jurisdiction” twice, once in the Citizenship Clause as “subject to the jurisdiction”, and once in the Equal Protection Clause as “within its jurisdiction.” “Within its jurisdiction” has a geographical sense to it, while “subject to the jurisdiction” has an authoritative sense to it.

There’s not much wiggle room in the wording of the Fourteenth Amendment, but Texas, the appellants, tried:

In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws.

Writing for the majority, J. Brennan rejected that argument saying it was not supported by the logic of the Fourteenth Amendment.

Writing for the four dissenting Justices, J. Burger concurs on this point:

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state.

Opponents of birthright citizenship for children of undocumented aliens often claim that these children are not “subject to the jurisdiction” of the United States and hence, should not be granted citizenship.

In footnote 10 (dicta?) of Plyler the Court addresses the “subject to the jurisdiction” phrase of the Citizenship Clause by citing Justice Gray in United States v. Wong Kim Ark who noted it was:

impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

Justice Gray concluded that:

[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

The idea that opponents can somehow construe the phrase “subject to the jurisdiction” to deny birthright citizenship to the children of undocumented aliens, is not supported by the logic of the Fourteenth Amendment. These children can be arrested, imprisoned, and their parents can be deported. To somehow consider them not subject to the authority of the state is ludicrous.

If undocumented aliens cannot be excepted from the protection of the laws of the State, then they cannot be excepted from subjection to the laws of the State.

In INS v. Rios-Pineda a unanimous Court observed:

By that time, respondent wife [an undocumented alien] had given birth to a child, who, born in the United States, was a citizen of this country.

H/T: Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature (James C. Ho) (pdf).

14 thoughts on “Plyler v. Doe (1982) and Jurisdiction”

  1. Let me thoroughly confuse the issue with this lawful fact. There are two distinct statuses of citizenship in America as is indicated in the case Van Valkenburg v. Brown, 43 Cal. 43 wherein Chief Justice Wallace of the Supreme Court of California in 1872 said the following:

    “No white person born within the limits of the United States, and subject to their jurisdiction, or born without those limits, and subsequently naturalized under their laws, owes the status of citizenship to the recent amendments to the Federal Constitution. The history and aim of the Fourteenth Amendment is well known, and the purpose had in view in its adoption well
    understood ”

    and again in the slaughterhouse cases they said:

    “It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual” Slaughterhouse Cases – 83 U.S. 36, 75

    The Fourteenth Amendment citizenship was wholly a congressional concoction without lawful foundation since at that time Congress did not have full representation of all the states involved. The 11 Confederate states were not represented in congress during its ratification process, therefore the fourteenth at best could have been only the mere opinion of the ones sitting in congress and could never be considered Law!

    This would mean that there is no such thing as a fourteenth citizen except in the imagination of the minds of those who believe there is or only as a matter of tradition and use.

  2. Nal,
    You are correct and I should have written “there is nothing definitive about citizens or citizenship.”

    “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….”

    The (potential) problem with applying the EP clause to the citizenship clause, is that it appears to render the phrase “and subject to the jurisdiction thereof [i.e., the US]” surplus or it sets up a situation that allows for citizenship to disappear when one who was born in the US (but has non-citizen parents) leaves the country.

    Of course, there is also a problem in not applying the EP clause in that manner: the same word now has two meanings in the same amendment. This may be a lesser problem because, as Nal pointed out, the natural reading of the two clauses tends to show that the word was intended to have different meanings.

    I read something about winning at the US SC: the side that is best able to distinguish its arguments from existing case law will win because the Court does not like to admit it is overruling existing precedent. I guess that’s why skilled advocates make the big bucks.

  3. Nal,

    Take a look at Benny v. O’Brien (1895) Supreme Court of New Jersey for a much better interpretation of the Fourteenth Amendment. It incorporates an intelligent rationale; a reasonable intent not found in Ark.

    Prior to the tortured interpretation of the Fourteenth Amendment by the Court in Wong Kim Ark, we had never made the child of an alien, born here while on temporary sojourn, a Citizen of the United States. Sure, they could be considered a citizen of one of the various states, but that presented no future obligation of allegiance.

    The Court, in Wong Kim Ark, was not presented with a question of what to do with someone born here who is subject to a foreign power. As such, any determination thereof is dicta, and should be recognized as such instead of being accepted as controlling.

    Even the State Department under the Bush and Clinton Administrations recognized that the matter of those born subject to a foreign allegiance to parents not permanently and legally domiciled here was just “considered” and not legally determined. -That was covered-up by the Obama Administration.
    Please take the time to read this recent article;

  4. Rae,

    Thanks for pointing out that poorly worded sentence, it’s been fixed.

    There is no indentified intent of the Fourteenth Amendment, to claim as citizens, those who would be subject to a foreign power.

    It doesn’t make any difference whom a foreign power considers as a subject. If a person is born in the US and subject to its jurisdiction, then that person is a citizen.

  5. These children and their parents can be arrested, imprisoned, and deported.”

    So U.S. Citizens can be deported? Is that what they are now teaching at the Christine O’Donnell School of Law? (Fair is fair, and all persons who make assinine statements should be subject to ridicule for those statements.)

    The Fourteenth Amendment was presented to address the problems occurring in the states; specifically those associated with persons of African descent. It dictated that those born or naturalized here must be considered to be citizens.

    While the states were free to accept anyone as a citizen (even aliens who had not been naturalized) they were not permitted to make an alien a citizen of the United States. That was left to Congress. COngress did so by the Civil Rights Act of 1866. Unfortunately, that Act was not able to make the states accept the former slaves as citizens of the states, and provide them with the same rights as whites. That’s why we needed the rushed Fourteenth Amendment.

    Africans, though born here for generations, had not been naturalized. The Fourteenth Amendment remedied that by making them U.S. Citizens. Once they were citizens, their descendants were naturally citizens of the United States.

    There is no indentified intent of the Fourteenth Amendment, to claim as citizens, those who would be subject to a foreign power.

    While the Court, in Wong Kim Ark, correctly decided the case, the reasoning of the court, as explained in their opinion is an example of piss-poor American Jurisprudence. In that case, Wong Kim Ark was born here, of parents permanently domiciled here, and not subject to any foreign power (The Emperor of China was not claiming those born abroad as subjects).

    Some have even gone so far as to interpret the Court’s holding as to declare the children of all aliens, born on U.S. soil, to be “natural-born citizens” and therefore eligible to the Office of President. This interpretation is ludicrous as demonstrated by the Oath of Citizenship (prior to and subsequent to our Constitution being adopted). It is further demolished by the requirements to work as an aide in the White House.

    All naturalized citizens are required to renounce any allegiance to a foreign power. The same goes for anyone accepting a position in the White House. But no such renunciation exists within the Oath of Office for the President!

    Are we hypocrites? Were the Framers hypocrites? To be a naturalized citizen, you must cast off any foreign allegiance, but to be the Commander in Chief it is acceptable to hold divided allegiance? That’s ludicrous on its face!

    There is only one reason that the Oath of Office for the Presidency did not need the applicant to renounce any foreign allegiance. That is, he wasn’t supposed to have any foreign allegiance to begin with. The ONLY way to ensure that no foreign prince could claim him as a subject would be for him to have been born on U.S. soil to parents who were U.S. Citizens. —Wake up people!!!

    Anyone who has studied international law will understand that any country who could legally claim you as a subject can call you into service of that country. U.S. Citizenship can afford you no protection while in their jurisdiction. The Framers understood this. A diplomat, though engaged in the service of one country, can, while in a foreign country to which he owes allegiance, can be held a required to serve that country. That is a danger recognized by John Jay and the reason behind his letter to George Washington;

    ”Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.”

    —We need to address the problem associated with the children of illegal immigrants. I don’t think the sins of the parents should be served upon the child. The child is deserving of our protection. They should be considered subjects of the United States. But that child of aliens, at best, should only be provided with the opportunity to naturalize when reaching the age of majority. If the parents are picked up and deported, they should be given the choice of taking their child with them, or leaving them as a ward of the United States.

  6. mahtso,

    Thanks for pointing that out about the Rios case, I’ve changed the wording.

    The Plyler case does say something about citizenship in footnote 10. As noted that’s dicta.

    However, I was applying the logic of the Plyler holding on the Equal Protection Clause to the Citizenship Clause.

  7. To clarify: in my first post I was referring to the Plyer case. The post also references Rios-Pineda. I think the blogger is wrong in that the quoted language is not the holding of the Rios case, but rather is dicta.

    As an aside, I find it interesting that Plyer, which was a 5-4 decision, is characterized as being based brought by stupid people.

  8. I don’t know what the position of the people in Texas is, but according to the syllabus of the case, which is all I read, the plaintiffs were illegal aliens. So the case stands for the proposition that illegal aliens get equal protection and it says nothing about citizens or citizenship.

  9. “The idea that opponents can somehow construe the phrase “subject to the jurisdiction” to deny birthright citizenship to the children of undocumented aliens, is not supported by the logic of the Fourteenth Amendment.”


    I have no doubt you understand that logic had little to do with the Texas assertion.

  10. Well done Nal. This case is one more example of how desperate the birthright citizenship deniers are. Is it a surprise that this case was from Texas?(sorry AY!) Today this case would probably be brought by one of the crazies in Arizona.
    If they are not “within” the jurisdiction when they are present in the jurisdiction, how could any alien be “subject” to any of the laws of Texas? According to the Texas argument, these people didn’t exist leagally!

  11. “In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws.”


    Apparently they slept through the parts of Civil Procedure where physical jurisdiction was discussed. I can’t believe they thought that would fly. I can believe they were stupid enough to try it, just not that they thought it would work.

    This was a good decision.

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