Socrates and the Fourteenth Amendment
The matter of jurisdiction
“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.”
Thus begins the Fourteenth Amendment, straightforwardly and unambiguously – except for that clause about jurisdiction. Are there persons born in the United States who are not subject to its jurisdiction? Apparently the framers of this amendment thought so. Otherwise they wouldn’t have wasted their ink and our time.
Who might these persons be? Custom and the courts have identified them as children of diplomats and of Indian tribes that governed themselves.
Lately some people, including President Trump, have wanted to add children of persons in the United States illegally. Whether the courts will agree with the president’s novel interpretation remains to be seen.
America isn’t the first republic to consider this question of jurisdiction. It goes very far back, to the days of Socrates. Indeed to the last days of Socrates, as related by Plato in his Crito. Socrates is in prison under sentence of death for impiety and corrupting the youth of Athens. He had questioned the ruling theology, as he questioned everything. The friends of Socrates, including Crito, try till the end to persuade him to escape the prison and flee Athens. Crito offers to bribe the guards.
Socrates declines. He says he had his chance to leave Athens earlier but instead remained. In doing so he accepted the jurisdiction of Athens and its laws. Socrates imagines what the laws of Athens would say about an attempt by him to evade their justice at this late hour. “The laws will say: ‘Consider, Socrates, if this is true, that in your present attempt you are going to do us wrong. For, after having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good that we had to give, we further proclaim and give the right to every Athenian, that if he does not like us when he has come of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him; and none of us laws will forbid him or interfere with him. Any of you who does not like us and the city, and who wants to go to a colony or to any other city, may go where he likes, and take his goods with him. But he who has experience of the manner in which we order justice and administer the state, and still remains, has entered into an implied contract that he will do as we command him.’”
The laws would continue: “‘There is clear proof,’ they will say, ‘Socrates, that we and the city were not displeasing to you. Of all Athenians you have been the most constant resident in the city, which, as you never leave, you may be supposed to love. For you never went out of the city either to see the games, except once when you went to the Isthmus, or to any other place unless when you were on military service; nor did you travel as other men do. Nor had you any curiosity to know other states or their laws: your affections did not go beyond us and our state; we were your especial favorites, and you acquiesced in our government of you; and this is the state in which you begat your children, which is a proof of your satisfaction.’”
Further, the court that convicted Socrates had given him the option of banishment. “But you pretended that you preferred death to exile, and that you were not grieved at death. And now you have forgotten these fine sentiments, and pay no respect to us, the laws, of whom you are the destroyer; and are doing what only a miserable slave would do, running away and turning your back upon the compacts and agreements which you made as a citizen. And first of all answer this very question: Are we right in saying that you agreed to be governed according to us in deed, and not in word only? Is that true or not?”
Socrates turns to Crito. “How shall we answer that, Crito? Must we not agree?”
“There is no help, Socrates,” says Crito.
The testimony of Socrates might not be admissible in American courts, but it elucidates the principle behind the question of jurisdiction. In free republics, like Athens and the United States, persons who voluntarily come and stay thereby place themselves under the jurisdiction of the government. This applies whether they come legally or not. The government acts on that jurisdiction. Any immigrant, legal or otherwise, who robs a bank is subject to arrest and imprisonment for that crime. Diplomats are an exception, by international law. In America, Indians have been another exception when subject to tribal law.
Americans might still decide that children of illegal immigrants should not be citizens. But they’ll probably have to re-amend the Constitution.
I have not briefed the question. I am not now, nor have I ever been, nor am I ever likely to be a Supreme Court Justice. But when it comes to reading the U. S. Constitution, I am pretty much a literalist.
The Citizenship Clause, Section 1, Clause 1, of the Fourteenth Amendment reads: “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.”
As Plato might have written in the manner he did of Socrates, I should think that some Justice, when the issue is squarely before the Supreme Court, in oral argument might pose the following questions to the Solicitor General:
Justice: General Harris, is it the Government’s position that it has the legal right to deport a child born in the United States to illegal immigrants, because that child is not a citizen of the United States?
General Harris: Yes, Your Honor.
Justice: And on what law is that based?
General Harris: The Immigration and Nationality Act, 8 U.S.C. §1101, Your Honor.
Justice: Is that because a child of illegal immigrants within the borders of the United States is nevertheless subject to that law of the United States?
General: Yes, Your Honor. It has long been held that individuals within the borders of the United States, unless specifically exempt, such as foreign diplomats, are subject to U.S. laws. In our brief we cite the Court to the following cases of this Court and statutory authority: 1. United States v. Wong Kim Ark (1898)(holding that a child born in the United States to non-citizen parents, who were lawful permanent residents, was a U.S. citizen under the Fourteenth Amendment. The Court reasoned that the phrase “subject to the jurisdiction thereof” meant subject to U.S. laws and legal authority, excluding only those with diplomatic immunity or foreign armies in hostile occupation.) 2. The Civil Rights Act of 1866, which preceded the Fourteenth Amendment and influenced its drafting, declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” reinforcing the idea that jurisdiction means legal obligation to follow U.S. law. 3. Plyler v. Doe (1982)(While dealing with the rights of undocumented immigrant children to public education, this Court reaffirmed that “aliens, even illegally present in the United States, are subject to its laws,” noting that “whatever his status under the immigration laws, an alien is surely subject to the laws of the state in which he resides.”) 4. Kaoru Yamataya v. Fisher (The Japanese Immigrant Case) (1903)(holding that an undocumented immigrant present in the U.S. was entitled to due process under the Fifth Amendment, reinforcing that being within U.S. borders means being subject to U.S. law, even if one is removable under immigration laws. 5. Indian Citizenship Act of 1924, which granted U.S. citizenship to all Native Americans born in the United States, acknowledging that prior to this, many Native Americans were considered members of sovereign nations and not fully subject to U.S. jurisdiction unless they had assimilated into U.S. society.
Justice: I find it curious that the Respondent cites these same authorities for her proposition that she is a citizen, because she was born within the borders of this country. General, is it not also the Government’s position that Courts of the United States and of the States have jurisdiction over such persons when such persons break a law, because they are here in the United States, not being exempt because they are here as foreign diplomats or family members of such diplomats, or Native Americans prior to 1924 before the passage of the Indian Citizenship Act?
General: Yes, Your Honor.
Justice: So doesn’t it follow that a person born in the United States, and not exempt, is a citizen subject to the jurisdiction of the United States if that person is subject to United States laws?
I wonder what the Solicitor General’s answer might be. I can’t think of a good one.
I agree that to say otherwise requires an amendment to the Fourteenth Amendment itself.
Trump team is already advancing the theory that children of illegal immigrants are not citizens. Despite the 1898 Wong case which affirmed they were and is of course a precedent, the current SCOTUS has no issues overturning precedents unless they are "super precedents" and we haven't seen one of those yet.
The Constitution only means what SCOTUS says it means, regardless of yours or my view of the text or our interpretation.
The court has used newly developed and specious doctrines such as "major questions" and "non-delegation" and "historicism" as well as pretending to read the minds of the founding writers reasons for their text.
My prediction- the argument will be thus:
1. The Dred Scott decision by Taney specifically said black people could never be citizens The writers of the 14th wrote it specifically to provide citizenship to black people to overturn Taney's Dred Scott decision- That was their intent
2. Then there was the Wong case was decided to let a Chinese person born here be a citizen because to rule otherwise in 1898 would have prevented citizenship for thousands of white immigrant's children mostly in the east coast. That was done for a practical application of the day.
3. In any case, Wong's parents and those of the whites in the east coast- those immigrants came here legally under the laws of the time. Thus neither the framers of the14th or the judges who ruled on the Wong case or others like it, ever meant for the protection of citizenship to extend to children of illegal immigrants.
The 14th will thus be re-interpreted and children born here to illegally migrated parents will not be citizens. They will be subject to the jurisdiction of their parents home country.