Brian Schroeder

To have a constitutional understanding of birthright citizenship requires a literate grasp of the principles of constitutional citizenship which, sadly, many Americans were never given. Hence the confusion, even amongst otherwise capable and respected legal minds.

For example, how many Americans know that citizenship in America was never even defined in the Constitution until 1868 when the 14th Amendment was ratified? I didn’t. How many Americans know what the 14th Amendment actually says? I didn’t, until a closer reading was forced. 

Here is its exact wording: “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 blowhards on the evening news shows (pundits and politicians alike) quickly exclaim, “See there? It says if you’re born in the U.S., you’re a citizen!” Except it doesn’t. Look closely, there are two key elements clearly stated in the 14th Amendment regarding American citizenship: (1) birth or naturalization in the U.S., and (2) being subject to the jurisdiction of the U.S. For most (have you noticed?), it’s the second one that gets lost in translation … or conveniently ignored.

So how does one come to believe that any person born within our nation’s geographical borders is the equivalent of being subject to its jurisdiction? Wouldn’t that render the jurisdiction clause redundant, needless and, therefore, meaningless? If this was what the framers had intended, they could have simply said that all persons born or naturalized in the U.S. are thereby citizens … but they didn’t.  

In fact, they were so specific and so careful as to clarify the jurisdiction clause’s meaning as owing allegiance to the U.S., exclusively and entirely (that meant, no other country). I struggle to find any ambiguity there.

Moreover, it is not an insignificant footnote of history to discover that the citizenship clause in the 14th Amendment was actually added later. The original version simply said that citizens were “persons born in the U.S. or naturalized by the laws thereof.” This initial draft was sent to the Joint Committee on Reconstruction, which then revised it by adding (wait for it) … the jurisdiction clause! That means the clause had particular significance to the committee because it was important enough to make sure it was there to clarify the first part. It also obviously meant that not all persons born in the U.S. became citizens upon their birth.

Additionally, it is legally and historically notable that when this amendment was debated, Michigan Sen. Jacob Howard (the Reconstruction Committee’s manager on the 14th Amendment), gave pronounced assurance that the added language would not make citizens of the Indians, even though they were born (before anyone!) on American soil. 

Howard successfully argued that native Americans would not be subject to the nation’s jurisdiction for one distinct and obvious reason: Their first loyalty was to their own individual tribes!

In addition, because jurisdiction was defined and understood as allegiance, Sen. Howard demonstrated how Indians were not only exempt, but so were other “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

Suffice it to say, that important clarifying clause in the 14th Amendment (“subject to the jurisdiction”) is about total and exclusive allegiance to the United States of America, not just being subject to American laws (the contemporary superficial rendering). 

That’s why the recent ruling by the Supreme Court on this issue reflected  inexplicable historical ignorance by our highest court. No wonder Justice Thomas was so flabbergasted and outraged in his dissent. No wonder also that he recently questioned whether our founding ideals will endure. 

(Brian Schroeder is the former Wyoming Superintendent of Public Instruction, an ordained minister and founder/president of The ChrisCorps Commission (bschroeder081858@gmail.com))