Punjab Outlook

On the 250th Anniversary of our Declaration of Independence, the improbable Trump v. Barbara
will be heard by our Supreme Court. This is a class action lawsuit on birthright citizenship — a
fundamental consideration deeply connected with the Declaration itself. Time must be taken
from our very busy schedules to focus on this question in light of what America was founded to
be.
What is birthright citizenship? The policy where a child, when born in the United States, is
automatically a citizen of the United States.

Subject and Citizen: The Founding Distinction
To understand the question and its allied confusions, it is useful to examine British Common
Law, on which our Founding was based in part. William Blackstone’s Commentaries on the
Laws of England was obviously known to our Founders. However, they also knew that the term
used in England was SUBJECT — and a subject is not a citizen. The terms must be separated,
as they are directly relevant to the birthright citizenship debate of the 21st century.
Subjectship is part of the feudal system of governance, derived from the master-and-servant
relationship. Anyone born in territory under the feudal system owed allegiance to the king — a
“debt of gratitude” which Blackstone describes as “intrinsic” and incapable of being forfeited,
cancelled, or altered. Birthright subjectship under common law is thus the doctrine of “perpetual
allegiance.”
Then came the rebellious to-be-Americans, who stated plainly: “the good people of the colonies
are Absolved from all Allegiance to the British Crown and that all political connection between
them and the State of Great Britain, is and ought to be totally dissolved.” Blackstone, of course,
would have called this high treason. That was the basis of the founding of America. The
influence of British common law, and the concept of subjectship with it, ended with that
declaration.

James Wilson — Supreme Court Justice, signer of the Declaration of Independence, and member
of the Constitutional Convention — stated clearly: “Under the Constitution of the United States
there are Citizens, but no Subjects.”
Here is the crucial difference: the consent of the governed, not the accident of birth, defines
citizenship. This principle is present in both the Constitution and the Declaration of
Independence.

The 14th Amendment: Three Conditions, Not One
Citizenship is created by law. Although the Constitution mentioned citizenship in 1787, it did not
define it until the 14th Amendment, ratified in 1868:
“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.”
Three conditions are present: Birth, Naturalization, and Jurisdiction. The question before the
Court today turns on the clause: subject to the jurisdiction thereof.
It was specifically included. If it were not an important clause it would not have been there. The
jurisdiction is of the United States and no other country — meaning allegiance to the United
States and no other. In light of this, dual citizenship with foreign countries is constitutionally
unsupported, though the practice has been widely ignored, including by a significant portion of
Congress.
The 14th Amendment grew directly from the Civil Rights Act of 1866, which established the
citizenship of the newly freed slaves to protect their rights and liberties. Many in Congress
argued that prior amendments already covered citizenship, but the majority wanted it explicitly
legislated — giving rise to the Civil Rights Act, which directly necessitated the 14th Amendment
to make it constitutional.
The Joint Committee on Reconstruction gave the final language. The first draft read: “persons
born in the United States or naturalized by the laws thereof.” The Committee added the
jurisdiction clause deliberately — because not all persons born in the United States are
automatically citizens.
The framers’ own words on the floor of Congress are the most important evidence, and they have
been largely obscured.
Senator Jacob Howard, the clause’s author, stated in 1866: “This will not, of course, include
persons born in the United States who are foreigners, aliens, or 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.” Note the precision: he explicitly names foreigners and
aliens as excluded — not merely diplomats.

Senator Lyman Trumbull — primary author of the Civil Rights Act of 1866 which the 14th
Amendment constitutionalized — stated that “subject to the jurisdiction thereof” required being
subject to the complete jurisdiction thereof, meaning, in his own words, “not owing allegiance to
anyone else.” Thomas Jefferson had earlier written that “aliens are the subjects of a foreign
power,” owing allegiance to another country — hence their children are not US citizens.
This is dispositive from an originalist standpoint. The framers themselves defined the clause as
requiring complete allegiance, which a foreign national cannot by definition provide, as they owe
allegiance to another sovereign.
Under Section 5 of the 14th Amendment, Congress holds the power to define “by appropriate
legislation” who is subject to the jurisdiction of the United States. Howard noted that this
jurisdiction excluded “persons born in the United States who were foreigners, aliens, or who
belong to the families of ambassadors or foreign ministers.” Subject to jurisdiction means owing
exclusive political allegiance to the United States.
At that same time, in 1868, Congress passed the Expatriation Act, which allowed American
citizens to renounce their allegiance and alienate their citizenship — characterizing this right as
“a natural and inherent right of all people, indispensable to the enjoyments of the rights of life,
liberty and the pursuit of happiness.”

The Two Schools of Interpretation
School 1 — Narrow: Complete Jurisdiction / Allegiance Theory
Senator Howard explained that “the word ‘jurisdiction,’ as here employed, ought to be construed
so as to imply a full and complete jurisdiction on the part of the United States — the same
jurisdiction in extent and quality as applies to every citizen of the United States now.” That
reading would obviously exclude temporary visitors, foreign nationals, and those owing primary
allegiance to another sovereign. Refugees, asylum seekers, and undocumented persons whose
primary allegiance remains with a foreign state are not subject to jurisdiction in the constitutional
sense — and their children born on US soil are therefore not citizens by right.
School 2 — Broad: Territorial Jurisdiction Theory
Under the opposing reading, anyone physically present on US soil and subject to its laws —
including refugees, asylum seekers, and undocumented persons — falls within jurisdiction, and
their US-born children are citizens. The argument: there is no sense in which children of illegal
aliens are not “subject to the jurisdiction” of the United States, since they are subject to US law
and US courts.

The Native American Precedent —
The Framers’ Own Resolution
The framers resolved this interpretive debate by their own example, and it is the most
illuminating evidence available.
The 14th Amendment used the positive language “subject to the jurisdiction” precisely because
individuals who maintain tribal allegiance are not subject to the full and complete jurisdiction of
the United States. This was confirmed by the Supreme Court in 1884 in Elk v. Wilkins — while
the framers were still alive.
The reasoning is exact and transferable: Native Americans were physically present on US soil
and subject to US law in the territorial sense — yet the Court held they were not subject to
jurisdiction in the constitutional sense because their primary allegiance ran to a different
sovereign: the tribe.
By precise parallel, a refugee or asylum seeker who entered under foreign protection, carries a
foreign passport, maintains allegiance to a foreign state, and was processed under international
law by a foreign body (UNHCR) can be argued to occupy an analogous position: present
territorially, but owing primary allegiance to a foreign power or international legal framework —
not to the United States.
The only Supreme Court ruling thus far on birthright citizenship is US v. Wong Kim Ark, which
held by 6 to 2 that a child of legal resident aliens is entitled to birthright citizenship. This speaks
narrowly to legal resident aliens with permission to live in the United States — it does not
address the refugee or undocumented population.
A brief note on tribal citizenship: beginning in 1870, Congress offered citizenship to individual
tribal members on a tribe-by-tribe basis; in 1923, a universal offer was extended on the basis of
reciprocal consent. This is not dual citizenship — dual citizenship has no clause in the
Constitution.

My Core Thesis
My argument rests on three pillars:
First, the original text — the conjunctive structure of the 14th Amendment makes jurisdiction a
separate, equal condition. Birth alone was never sufficient.
Second, the framers’ own words — Howard and Trumbull both stated on the floor of Congress
that “subject to jurisdiction” meant complete allegiance, not owing loyalty to any other power.
That is not interpretation. That is definition from the authors’ own mouths.

Third, the Native American precedent — Elk v. Wilkins (1884) established the principle
judicially while the framers were still alive. Primary allegiance to another sovereign places a
person outside the clause. The parallel to refugee populations processed under an international
legal regime is structurally exact.
The Citizenship Clause was written to complete the republic’s promise to those already within its
allegiance — the freed slaves. It was never designed as an open door. The glossa on
“jurisdiction” — reducing it from allegiance to mere physical presence — is the single semantic
pivot on which a vast demographic and political transformation has been made to turn. That is
both a constitutional argument and a founding argument. The founding generation would
recognize it immediately.

Glossa — The Viperine Twist
Glossa, for those who do not know, is the art and practice of twisting words to change their
meaning — applying a gloss, in a manner of speaking, over a word to corrupt its original
referent. It is impermissible in American jurisprudence. It originates in British law and is still
used there. Black’s Law Dictionary preserves the Latin formulation from Coke: Glossa viperina
est quae corrodit viscera textus — “A viperine gloss is one that corrodes the vitals of the text.”
This concept will be essential to understanding what follows.  Continued…………