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. “Discuss” himself omitted context from Trumbull quotations. The very next sentence, which Epps himself quoted in his linked article, gives an example of the type of exception to complete jurisdiction that he had in mind.

    “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn’t make treaties with them.”

    Trumbull was speaking of persons born in the US who were not subject to its jurisdiction, because of treaties that recognized the jurisdiction of Indian tribes, because they were born to persons with diplomatic immunity, or because they were born to members of an occupying military force. The exception from citizenship for Indians not taxed is now obsolete, since it has been abolished by statute.

    So there it is. If a person who is born in the US cannot be sued in court, then she is subject to its jurisdiction. It does not matter if she has sworn eternal allegiance to a foreign power. If she can be sued for tort or breach of contract, or be prosecuted criminally, then she is subject to US jurisdiction. Jurisdiction means power, and the US has power. Trumbull excepted only those persons born in the US who were beyond the power of its courts, police, and civil agencies.

    The children of other aliens born in the US are subject to the “complete jurisdiction” of the United State, and are fully under the power of its agencies and instrumentalities. Their parents can be summoned into court if they do not care for them. If their parents die, the courts and agencies of the US and the states have full and complete power over their care and custody. No other country has the power or legal authority to care for them. If they grow up and commit crimes, the US can arrest, try, convict and imprison them.

    The theories set forth by “Discuss” are repeated all over the web until they are taken as settled law, since the believers are never question or contradicted. That is not the law.

    Another quote from Trumbull is frequently distorted: “This will not, of course, include persons born in the United States who are foreigners¬, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

    Read in context, he did not say that it would not include foreigners or aliens. He said that it would not include foreigners or aliens who belonged to ambassadors or foreign ministers. He was restating the traditional legal standard adopted from the common law.

    If you disagree with the policy, then amend the citizenship clause of the Fourteenth Amendment. That is the method that respects the Constitution and the Framers.

    I will just add that this is the settled, prevailing legal position of American courts, agencies, and the legal profession. There is a small minority opinion, but it is largely centered on the web. I hope this has been a civil response

  2. “Discuss” wrote: “Is it not greed that would subject those children to be called upon to serve in the U.S. military should the draft be instituted?”

    What is the point of this question?

    Aliens born outside the US, and who were present in the US until the draft was abolished, were in fact subject to the draft during the Vietnam War. If they refused to be sworn in, then they were escorted to a port of departure for deportation.

    All males born in the U.S., other than children of diplomats, were subject to the mandatory draft.

    Many posters and readers here are old enough to remember the draft personally.

  3. DtL: I am sorry we are not comporting ourselves with the degree of purity you seem to require. However, this is a blog with wide ranging ideas and opinions. And not a small amount of snark.

  4. You know there is so my hyperbole about Obama and not being a citizen…. Wasn’t there an Executive Order that Bush issued about the time of “911” that granted citizenship to any foreigner that enlisted in service of American Armed Forces…. So BIL, these would be of the 3rd way to obtain citizenship….

  5. Otteray Scribe,

    Is this going to turn into a presidential eligibility thread?

    I am aware of the speculation in regard to Spiro Agnew, but the recordings of a census taker can hardly be considered to be conclusive evidence thereof. In fact, the 1930 census (line 65) identifies Agnew’s father to have been naturalized in 1903.

    May I suggest that we confine the discussion to the law instead of playing around with matters in which no conclusive evidence has been presented?

  6. Buddha,
    don’t tell the Tea Party about that color changing ray gun. They will have it impounded.

  7. I’ll call my buddies at FindLaw and get them hopping on that Race Changing Ray ASAP, OS.

  8. BIL, good reading but that still does not turn Sprio Agnew black or Barack Obama white. Therein lies the rub.

  9. Some countries confer citizenship upon the offspring of children born abroad. A host country has no control over what a foreign country does. I believe a child born of American parents in another country (for example if the child is born while they are on vacation abroad) is an American citizen. Some countries (ours included) confer citizenship on children born in this country. Thus there are at least two ways a person might have dual citizenship.

    I doubt seriously there would have been a hue and cry over dual citizenship had Spiro Agnew become an accidental President. Over his crimes, yes, but not his citizenship. But then Spriro Agnew was white.

  10. Senator Trumbull?

    Was U.S. vs. Wong Kim Ark Wrongly Decided?

    Why did the author of this article choose to only quote the portion that served his interest? Is it not considered to be lying by omission when quotes are taken out of context? (Maybe the author didn’t take the time to review the Congressional Record.)

    For those interested, here is what Sen. Trumbull had to say;
    “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

    What role does International comity play in the determination? While it is clear that the Fourteenth Amendment was intended to establish that birth on U.S. soil establishes prima facie citizenship, how is that citizenship affected by the claims of a foreign state upon the descendents of its subjects or citizens? How do we intend to treat those foreign claims made upon the children of our citizens who are born abroad?

    Intent! 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.

    It is disappointing to see a legal “blawg” spend so much time presenting emotional support and so little time discussing the foundations of law. “Greed”; Is it not greed that would entice the U.S. to claim for its own the children of foreigners? Is it not greed that would subject those children to be called upon to serve in the U.S. military should the draft be instituted?

  11. Originalism is just another way of saying, I am not getting what I want out of the actual meaning, so let’s make something up. I imagine that Justice Scalia must be a big fan of this idea.

  12. Abbey,

    If you think Immigration and the Borders are the problem…unless you are Native American….should I suggest that you leave this America you know….. You are nothing more than a trespasser on someone else’s property…. ever dawned on you why G.A. Custer got killed and what that was over?

  13. Looking in the rear view mirror, opening the huge door to illegal immigration on our southern border was a economic and political decision similar to other destructive acts: the wars, no regulation, incompetent and compliant administration appointees, low interest rates, and fear of flu, muslims, jobs,china, and government. We are and have been manipulated.

  14. “Greed. In it’s extreme form may either represent the pathologies of obsession or sociopathy, but the net result is the same societal impact as sociopathy – the abuse and exploitation of others.” (Buddha)

    Gotta agree with Buddha as that has been my experience

    but also gotta agree with AY when he writes: “That was a shocker …”

    Coming to terms with both took a long, long time.

  15. A shocker for me when I went to law school….I learned that you don’t own anything…You just have a better right to it than the government…or the governments assignee…. That was a shocker….I thought you owned everything….it was one of those twilight moments….

  16. “So why can’t we all just get along”?

    Greed. In it’s extreme form may either represent the pathologies of obsession or sociopathy, but the net result is the same societal impact as sociopathy – the abuse and exploitation of others. The unquenchable desires of the avaricious will always cause them to demand blood from stones. That is until the stones get tired of being bled. For all their wealth, the Haves are not very good at math at the end of the day. History shows a consistent lesson: when the Have Not’s have had enough of the abuses of the Haves, the Haves get eaten. It’s a vicious circle. There will never be peace within our species until something is done about keeping both economic and political controls out of the hands of sociopaths; either by cure or legal restraint and mitigation. We are not just a predatory species by nature, we are a self-predatory species. Until that impulse is constrained by either medicine and/or science, there will never be lasting peace.

  17. I am unsure why “Illegals” are the subject of this time and energy…. If you look in the grand scheme of things…we are all here…in our…rented…loaned….possessions… So why can’t we all just get along…..

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