Do we, as a society, hold the inviolable right to control our sovereignty and, through our elected representatives, prevent individuals from asserting immigration and citizenship rights against our will? Or do foreign nationals and governments possess the authority to assert jurisdiction in our country, obtaining citizenship and its accompanying rights — without recourse for our citizens to oppose it, even prospectively? Those are the key questions before us as we navigate our journey as a nation-state.
I argued previously that even activist judges who misinterpreted the 14th Amendment as establishing birthright citizenship for children of legally “domiciled” immigrants would never have extended that right to children of illegal immigrants. These individuals either enter the country unlawfully or overstay their temporary visas, directly violating U.S. law.
Asserting that those who willfully violate immigration laws and enter the country without permission can establish jurisdiction for their children defies all logic.
Justice Horace Gray’s opinions in Nishimura Ekiu v. U.S. (1892) and Fong Yue Ting v. U.S. (1893) make it evident that when he ruled inU.S. v. Wong Kim Ark (1898) that children born to legally “domiciled” immigrants qualify as citizens, he would have staunchly opposed granting the same right to illegal immigrants.
Here, I want to focus on a specific point: People in the country without legal status — and in clear violation of multiple laws — are not legally considered within U.S. jurisdiction, even in a semi-literal sense. Even if the 14th Amendment’s directive granting citizenship to those born in the U.S. were not qualified by the phrase “subject to the jurisdiction thereof,” it would still exclude those here in violation of our immigration laws. Legally, it is as if such individuals are not physically present in the country.
Don’t ignore precedent
In Shaughnessy v. U.S. ex rel. Mezei(1953), the Supreme Court upheld a decision by the Truman administration to deny re-entry to a Romanian immigrant who had lived in the United States for 25 years. After traveling to Europe to visit his dying mother, the government barred him from returning. Since no other country would accept him, Ignatz Mezei was detained on Ellis Island for 21 months. The court ruled that the denial of entry and his detainment were lawful and did not violate his due process rights, citing the Chinese Exclusion Acts cases and extensive case law developed in the years since.
Building on Nishimura Ekiu and subsequent decisions, the court made it clear that Mezei’s temporary presence on Ellis Island did not grant him constitutional rights, even though he had previously lived in the U.S. legally for 25 years. The justices ruled:
Such temporary harborage, an act of legislative grace, bestows no additional rights. Congress meticulously specified that such shelter ashore “shall not be considered a landing,” nor relieve the vessel of the duty to transport back the alien if ultimately excluded. And this Court has long considered such temporary arrangements as not affecting an alien’s status; he is treated as if stopped at the border.
Justices Robert Jackson and Felix Frankfurter dissented but only because they felt a longstanding legal permanent resident should not be detained indefinitely without procedural due process, not that he had an affirmative right to remain in the country. “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will,” they wrote.
It wasn’t until 2001 in Zadvydas v. Davis that five post-constitutional justices began mandating the release of criminal aliens from detention. But even those justices affirmed the validity of Shaughnessy and 100 years of precedent — though, as Antonin Scalia observed in his dissent, that case now “stands unexplained and undistinguished” and “obscured in legal fog” by the courts’ activism.
For our purposes, however, Shaughnessy is incontestable precedent, as it should be in the eyes of a legal profession that idolizes stare decisis. Especially with a better Supreme Court, we should not assume Zadvydas would stand.
Jurisdiction rightly understood
This principle clearly demonstrates that individuals living in the United States illegally cannot meet the jurisdictional requirement outlined in the 14th Amendment’s clause, “subject to the jurisdiction thereof,” even under a misinterpreted reading.
The 1953 decision referred to Kaplan v. Tod (1925), a case where the court denied citizenship and relief from deportation to the daughter of a naturalized citizen who emigrated from Russia. On July 20, 1914, the Kaplan family arrived at Ellis Island to reunite with the father, who had worked in the United States for several years. The 13-year-old daughter, however, was deemed inadmissible for being “feeble-minded.” Due to the outbreak of World War I, her deportation was delayed, and she was placed in the custody of the Hebrew Aid Society. The society arranged for her to live with her father until her deportation was ordered in 1923.
By that time, her father had become a naturalized U.S. citizen. He argued that because his daughter was under 21 and living in the United States at the time of his naturalization, she was automatically entitled to citizenship under longstanding laws. In a terse ruling, the court rejected the petition outright:
Naturalization of parents affects minor children only “if dwelling in the United States.” … The appellant could not lawfully have landed in the United States in view of the express prohibition of the Act of 1910 just referred to, and until she legally landed “could not have dwelt within the United States.”
The court backhandedly rejected the notion that the daughter “dwelt within the United States,” even though she physically lived on American soil with her father for nine years, partly with temporary permission from the government. That’s because “she was still in theory of law at the boundary line and had gained no foothold in the United States” and had never “been dwelling in the United States within the meaning of the Act.”
Naturalization law and the 14th Amendment
Now, consider the language of the naturalization statute for immigrant children seeking naturalization alongside their parents and compare it to the wording of the 14th Amendment governing those born in the United States.
The 14th Amendment stipulates that a child must be born in the U.S. and be “subject to the jurisdiction thereof.” Even in interpretations where “jurisdiction” is understood to mean territorial rather than political jurisdiction — an argument that renders the phrase redundant — the phrase “subject to the jurisdiction” remains undeniably more restrictive than the purely geographical and literal phrase “dwelling in the United States.”
This distinction is critical. Everyone agrees that children born to members of Indian tribes and foreign diplomats are excluded by the 14th Amendment’s jurisdiction clause, even though they are physically born on U.S. soil.
Yet, the court in 1925 ruled, based on uncontested precedent, that individuals living in the United States unlawfully do not meet the meaning or intent of “dwelling in the United States.” This applied even in cases where they were granted temporary permission to remain on humanitarian grounds. Asserting that those who willfully violate immigration laws and enter the country without permission can establish jurisdiction for their children defies all logic and national consent.
Even the left acknowledges this as “settled law.” Illegal immigrants are considered “at the boundary line” and are viewed as having “gained no foothold in the United States,” regardless of where they currently reside.
Politicians, legal scholars, and judges who grant full constitutional rights to illegal aliens and citizenship to their children have gone beyond debating the meaning of the 14th Amendment. They are declaring that the United States is no longer a nation-state governed by a Constitution established by the people.