アメリカ合衆国憲法修正第14条
第1節、アメリカ合衆国で生まれ、あるいは帰化した者、およびその司法権に属することになった者全ては、アメリカ合衆国の市民であり、その住む州の市民である。
Section 1. 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.
Why is the phrase “subject to the jurisdiction thereof” in the 14th Amendment interpreted to allow any child born within US borders to claim US citizenship?
Kelly Kinkade
Kelly Kinkade, US citizen for over 45 years
Answered Jun 3
The purpose of this language in the Fourteenth Amendment was to prevent states from denying citizenship from freed slaves on the grounds that they could not prove either that they were born in the US or that their parents were citizens. Slaves were not regarded as citizens, and so a person born of slave parents was not a citizen at birth. The Thirteenth Amendment would have ended his or her condition of slavery, but would not have made him or her a citizen.
What the Fourteenth Amendment did was grant citizenship to everyone, and most importantly all freed slaves, who could prove that he or she was born in the United States, without regard to the status of his or her parents. Freed slaves who could prove their birth in the US were thus immediately citizens; those who could not would not necessarily be citizens, but their children would be.
If Congress had left open any wiggle at all in this, Southern states would have used it to deny citizenship to freed slaves, which is why the language, and its ongoing interpretation, is so absolute.
The language “subject to the jurisdiction” was intended to exclude Native Americans who, by treaty, had right of free passage and right of abode within the United States without being subject to the full force of the laws of the United States. At the time the Fourteenth Amendment was adopted, many native tribes had negotiated treaties with the United States that allowed their members the right to reside in various parts of the United States, while remaining subject only to the authority of their tribal governments. The purpose of this language was primarily to exempt these natives from being granted citizenship. This purpose became moot in 1924 when Congress adopted the Indian Citizenship Act, which extended US citizenship to the members of all recognized Native American tribes, and made all such persons fully subject to the jurisdiction of the United States.
面白いね。
アメリカが出生主義をとったのは、アフリカから連れて来られた黒人奴隷の子孫たちにアメリカ国籍を与えるためだったわけだね。「司法権に属することになった者」という表現は、アメリカの原住民をアメリカの国籍から排除するものだったが、1924年に原住民にも国籍を付与する法律ができた、と。
President Donald Trump may have met his match when it comes to U.S. citizenship: the 14th Amendment
Richard Wolf and William Cummings, USA TODAY
The Supreme Court ruled in United States v. Wong Kim Ark, an 1898 case, that a man born on U.S. soil to parents who were Chinese nationals was a citizen. As part of a 1982 decision, Plyler v. Doe, the high court said that even if someone enters the country illegally, they are within U.S. jurisdiction, and their children born in the U.S. are entitled to the protections of the 14th Amendment.
Trump said he has been advised he can reverse both the Constitution and the law and end birthright citizenship by executive order. He has some support.
Michael Anton, former spokesman for the National Security Council, wrote in The Washington Post recently that the 14th Amendment was written so as not to apply to undocumented immigrants.
Because the amendment addresses people subject to U.S. jurisdiction, Anton wrote, it distinguishes between "people to whom the United States owes citizenship and those to whom it does not.
"Freed slaves definitely qualified," Anton said. "The children of immigrants who came here illegally clearly don't."
Other conservatives contend that at least Congress, if not the president, can end birthright citizenship by legislation. John Eastman, director of Claremont Institute's Center for Constitutional Jurisprudence, has written that the 1898 ruling applied only to the children of legal immigrants.
"It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil," Eastman wrote in The New York Times.
Most legal scholars disagree. In testimony before Congress in 1995, assistant attorney general Walter Dellinger said even congressional efforts to deny citizenship to some children born in the U.S. were non-starters.
"No discretion should be exercised by public officials on this question – there should be no inquiry into whether or not one came from the right caste, or race, or lineage or bloodline in establishing American citizenship," Dellinger said. "In America, a country that rejected monarchy, each person is born equal, with no curse of infirmity, and with no exalted status, arising from the circumstance of his or her parentage."
On Tuesday, Dellinger noted that Trump’s proposal would question even the citizenship of people whose parents or grandparents had birthright citizenship.
Dellinger is a liberal, but many conservatives agree with his assessment. James Ho, named by Trump to the U.S. Court of Appeals for the 5th Circuit last year, wrote in 2011 that states' efforts to rewrite U.S. citizenship law was unconstitutional.
"Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution," Ho wrote. "Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower."
Before the Civil War, the Constitution did not define explicitly what made someone a U.S. citizen, leading to decades of disputes, according to legal scholars Akhil Reed Amar and John C. Harrison. The Supreme Court had ruled in 1857's Dred Scott v. Sandford decision that people of African descent, whether slave or free, were not entitled to full citizenship.
"At the simplest level, the 14th Amendment's Citizenship Clause was meant to repudiate Dred Scott," Amar wrote. "However, it was also meant to root post-Civil War America – America’s Second Founding – in an inspiring Lincolnian reinterpretation of one of our nation’s Founding truths, that we’re all created/born free and equal."
Amar, a Yale University law professor, said the amendment's citizenship clause "marked an important shift in American identity" and "established a simple national rule for citizenship: If you’re born in America under our flag, you’re a U.S. citizen."
不法移民の子供は、米法の管轄外だから、14条で国籍は与えられていない、という少数説があって、トランプは出生主義を否定しようとしているけど、学会の多数説は、それは憲法違反だ、と。
