Da Vinci Code ‘Originalism’

-Submitted by David Drumm (Nal), Guest Blogger

Da Vinci “originalists”, a term coined by Garrett Epps, look for hidden meanings in the Constitution, much like Robert Langdon found the “hidden” symbols in Leonardo’s Last Supper. Where the text is clear, the Da Vinci “originalists” find secret meanings. Such is the case with the  Citizenship Clause of the Fourteenth Amendment.

Prof. Edward Erler of California State University, San Bernardino, and the Claremont Institute, went so far as to claim none of the sponsors of the Fourteenth Amendment “ever said that ‘subject to the jurisdiction’ meant merely subject to the laws or the courts.”


Sen. Trumbull, Chairman of the Senate Judiciary Committee, said:

It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.

Opponents of birthright citizenship look for “intended” meanings in the text, drafting history, overall structure, and historical background in regard to the Citizenship Clause. When the text of the Constitution doesn’t support your views, argue intention, and call it “original” intention.

Those opposing birthright citizenship often claim the notion of not owing allegiance to some other government as an “intended” requirement for citizenship. Opponents try and construe “subject to the jurisdiction thereof” to mean owing complete allegiance to the United States.

The framers of the Fourteenth Amendment focused on the child born within the United States and not on the status of its parents. The phrase, “subject to the jurisdiction thereof”, clearly refers to “[a]ll persons born … in the United States.” Consider a baby born in the United States. A baby’s allegiance is to itself and its parents. To claim that a baby possesses allegiance to some other government is absurd. Yet, if “subject to the jurisdiction thereof” implies an owing of allegiance, this is exactly what the opponents’ logic requires us to accept.

Is the baby of U.S. citizen parents, born in the U.S., not to be granted citizenship until its allegiance to this country has been verified?

Citizenship requires an inherent dignity that can not be found in the political whims and prejudices of the day, but in the objective condition of automatic citizenship.

H/T: Garrett Epps, Elizabeth Wydra (pdf).

27 thoughts on “Da Vinci Code ‘Originalism’”

  1. Tomdarch said:

    The US is strong enough to handle a few imaginary “anchor babies.”

    If you honestly think anchor babies are imaginary, I strongly recommend you get yourself a tad more educated re: what’s happening along our border cities.

    In the perfect world, 72-hour ride-along shifts with Paramedics in southern California cities, would be a prerequisite for high school graduation.

    You appear to be in serious need of a reality check.

  2. What are we so afraid of in granting citizenship to everyone born in the US? Are we so weak that we can’t afford to do that?

    Look at a contrasting example like the fate of multi-generational Turkish people in Germany, yet who are not German citizens. The US is strong enough to handle a few imaginary “anchor babies.”

    As with a lot of right-wing arguments (like support for torture) this fear of immigrants is rooted in an assumption that the US is too weak to survive doing the right thing. Bah! The US survived the swarm of hordes of my immigrant Irish ancestors (with their drinking, disease and {gasp!} Papism!), we can more than survive granting citizenship to the children of “illegal” Mexican, Polish and others in the US.

  3. What??? Sorry about that- I lost a paragraph and some puncuation shifting between a Bradley Manning tab:

    Between ‘hope.’ and ‘Otherwise’:

    The US doesn’t strip an individual’s citizenship for the convenience of another country nor let dual citizenship get in the way of exercising US sovereignty. That issue came up with Bradley Manning recently regarding the possibility of his having dual citizenship through his mother. Doesn’t work that way. Likewise, citizenship isn’t something that belongs to the state. It belongs to the individual, the state has rights and obligations in response. The state can not be master of the right to citizenship beyond a few simple and straightforward requirements for its accrual.

  4. Discuss, “What role does International comity play in the determination?”


    As a layperson I would say ‘none now, as I understand the law, and none in the future’ one would hope. Otherwise citizenship (and it’s benefits and protections) would become a matter of political whim. Let’s guess who Jan Brewer would strip of citizenship with the stroke of a pen if she could? Or a Scott Walker? Or a Robert Byrd or George Wallace version 1.0. For whatever reason they find politically expedient or personally appealing. Even when the Japanese were interred in concentration camps their citizenship wasn’t in question. It can’t be taken, only renounced. And a damn good thing that is too.

  5. Finally, remember the context of the Fourteenth Amendment itself. The purpose was to repeal the Dred Scott decision. Taney had held that any person who was a descendant of African slaves could never be a citizen of the United States, whether free or held to service.

    He simply rewrote the Constitution, judicially, to insert the word “white” in front of “citizen” wherever it occurred. The Fourteenth eliminated the word “white.”

    The framers of the Fourteenth wanted absolutely and permanently to prevent any future Taney from rewriting the word citizen again.

    They set up a clear, objective test. All it asks is whether there is jurisdiction. That means power, independent of the state of mind or intent of the person. It is unmistakeable and unambiguous.

    There is no need to look into subjective tests, like the vague term “allegiance.” That depends on the state of mind of the person. Who knows what his allegiance may be? It requires mind readers.

    The same goes with citizenship. Citizenship can be accorded by any country in the world, on the flimsiest of bases. Another country could confer citizenship on the children or grandchildren of its émigrés.

    And note this. It could confer citizenship on all those children who are born in the US, even after their parents have been naturalized. A country can count all its émigrés as citizens, unless they go to an embassy or consulate and formally renounce that citizenship. Those countries can claim allegiance, completely against the will of the parents and their children.

    Do the opponents of birthright citizenship really want to allow other countries to have a say in our citizenship determinations?

    The framers of 1866 carefully guarded citizenship, keeping it under the plenary control of the United States. It completely excluded the interference of foreign powers in this determination of an essential element of sovereignty.

    These opponents of birthright citizenship rarely consider the unintended consequences of their doctrines and proposals.

  6. “Discuss” writes “I find it fascinating that we would claim a right to the children born abroad of our citizens while not providing the reciprocal courtesy to the children of aliens born in the U.S.”

    This confuses citizenship and jurisdiction.

    Children of US citizen parents born overseas are accorded US citizenship at birth by statute, but the US has no judicial jurisdiction over them while they are overseas.

    Children of alien parents born in the US, who are US citizens from birth, may also be accorded citizenship by their parents’ country, or may apply for such citizenship, but those countries have no jurisdiction or power over them until and unless they go to that foreign country.

    The Fourteenth Amendment only says “jurisdiction,” and mentions nothing of foreign allegiance or citizenship. I hope this is helpful to readers here in clarifying the legal aspects of the discussion.

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