What is the meaning of “and subject to the jurisdiction thereof” in the 14th amendment? In the fourteenth amendment, what does the phrase “and subject to the jurisdiction thereof” contribute? What people born in the United States would not have been subject to the jurisdiction of the United States? All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. Same question restated: would the formulation below have a different legal meaning? All persons born or naturalized in the United States are citizens of the United States and the State wherein they reside. (Purely theoretical legal question; no relation to current events.)
In the case of United States vs Wong Kim Ark 169 U.S. 649 (1898) (a 6-2 decision), the Supreme Court wrote: [T]he real object of the Fourteenth Amendment of the Constitution, in qualifying the words, &quot;All persons born in the United States&quot; by the addition &quot;and subject to the jurisdiction thereof,&quot; would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. ... [T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. ... To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States. In short the phrase “and subject to the jurisdiction thereof” excludes three and only three groups of people: Children born to foreign diplomats here on diplomatic business, who have diplomatic immunity to US Law; Children of members of an invading army that has occupied and controlled some part of US territory, born on that occupied area, who are obviously not subject to US Law (which has rarely happened in the US, although Guam was occupied during WWII, and parts of Alaska, and small parts of Maine during the War of 1812); and Members of Native American tribes, subject to the jurisdiction of their tribal governments, who do not pay US taxes. (This was true when the 14th amendment was passed, but it no longer is. See section below on the act that changed it in 1924.) Any other person born in the proper US or in incorporated US territory is a citizen, no matter who his or her parents are or were. (The case is less clear for unincorporated US territory.) See also the Wikipedia article on the case This view was confirmed in 1995 in an opinion from the Justice Department’s Office of Legal Counsel written by then-Assistant Attorney General Walter Dellinger, taking the position that this rule could not be changed by legislation, only by Constitutional Amendment, writing: My office grapples with many difficult and close issues of constitutional law. The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional. The Fourteenth Amendment declares that “[a]ll persons bom 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.” U.S. Const, amend. XIV, § 1. The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants. In Plyler v. Doe, 457 U.S. 202 (1982) the Supreme Court of the United States struck down both a state statute denying funding for education to children in the United States illegally and a municipal school district's attempt to charge an annual $1,000 tuition fee for each student. The case upheld the same principle that the constitutional phrase &quot;within the jurisdiction&quot; applies to the children of people who had entered the US illegally. According to the Wikipedia article on the case: Texas officials had argued that illegal aliens were not &quot;within the jurisdiction&quot; of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that &quot;no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.&quot; The dissenting opinion also rejected this claim, agreeing with the Court that &quot;the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state.&quot; Thus the question of whether such aliens were &quot;within the jurisdiction&quot; of the US was very much at issue in Plyler v. Doe EDIT: Since the Indian Citizenship Act of 1924 was passed, all Native Americans born within the US have been citizens by birth, and the third class of exceptions noted in the earlier cases non longer exists. Prior to this act Native Americans were in many ways treated as foreigners by the US. They were not citizens by birth, and their tribes had some but not all of the attributes of independent nations. The text of the law is: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. (End edit on Indian Citizenship Act of 1924) Edit: On reading through the decision of the case of Wong Kim Ark I find one more small exclusion: persons born on board a foreign naval ship, even though present in US waters in time of peace, are not citizens of the US because of their birth location. This is apparently not a usual case, but is premised on the ground that a military vessel remains the territory of the nation it belongs to. Such persons might of course be citizens by inheritance if one or both parents are US citizens, and the statutory conditions are complied with. (The term &quot;public ship&quot; in the 1800s was used to mean a national ship, that is a military ship.) (End edit on naval ships) I just learned that some parts of the State of Maine were occupied by the British during the war of 1812. I do not know if anyone was born during that occupation whose citizenship might have been affected.
Overview The list in this answer is not comprehensive merely listing some of the leading SCOTUS cases on point, but the approach taken, analyzing the way the term is used in a context specific, case by case approach, rather than trying to ascribe a trans-substantive meaning to it in all contexts is, I believe the correct approach. There are 30 SCOTUS cases that use the term discussing perhaps 15-20 treaties and statutes, and hundreds of circuit court cases that do so. It turns out that the term foreign national often paraphrases treaty language that is not identical when there is no ambiguity in the case before the court. The EO language is probably merely the product of sloppy drafting since the statute uses the word "alien". In many contexts where "foreign national" is used to paraphrase the exact treaty language, the term is relevant because it is used in a context where a relationship between the person and their nation is at issue in some respect as in the VCCR below and the Public Vessels Act. So, in those contexts, the term would often exclude "stateless persons". But, there is really no way to know in the absence of context whether dual citizens are or are not intended to be included in the term. The VCCR: Paraphrase One place that the term "foreign national" is used is Article 36 of the Vienna Convention on Consular Relations (VCCR) which gives a foreign national a right to diplomatic assistance in the criminal justice process. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The same section of the same treaty was at issue in Torres v. Mullin, 540 U.S. 1035 (2003). In this context, a stateless person is clearly not a foreign national, as a stateless person has no ambassadors or counsels from the country in which the stateless person is a foreign national to seek recourse. The term "foreign national" also paraphrases the treaty language which actually uses the phrase "nationals of the sending state" (where the "sending state" is the country with diplomats in the territory of the "receiving state") which could in a plain reading include dual citizens. Specifically it says: 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The Trading With the Enemy Act: Paraphrase The term was also used in a case discussing the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, and Executive Order 9095, as amended, which allowed for an "Alien Property Custodian" to seize property of a foreign national (in this case a German) in connection with World War II. See Silesian-American Corp v. Clark, 332 U.S. 469 (1947). It isn't clear, however, that this case has continuing legal validity and relevance. And, the "foreign national" terminology in this case appears to be a paraphrase of the phrase "enemy or ally of enemy" that appears in the underlying text of the authorizing statute. U.S-Mexico Extradition Act and 4th Amendment: Synonym For Alien The term was used in the case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which a Mexican citizen was kidnapped in Mexico by U.S. agents and tried in the U.S. on drug trafficking charges without regard to the U.S.-Mexico extradition treaty, which Judge Kennedy uses the term synonymously with "alien" in his concurring opinion in a case involving facts where any definition of the two terms applies. Hague Service Convention: Concept Not Used In Treaty The term was used in the case of Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) interpreting the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638 which governs service of process of foreign nationals to determine if it applies to service of process on foreign nationals within the United States. The treaty language of the Hague Service Convention itself, however, makes no reference at all to the nationality of the person served and depends entirely upon whether the person is served abroad in the territory of a signatory or not. Under the plain language of the treaty itself, a U.S. citizen in France has to be served pursuant to the Hague Service Convention, although a U.S. court would usually be in a better position to compel compliance from its own national than it would be from a foreign national. In a nutshell the facts and circuit splitting legal issues presented by the service of process in a product liability case in a state court in the United States in Chicago were as follows: VWAG, a corporation established under the laws of the Federal Republic of Germany, has its place of business in that country. VWoA is a wholly owned subsidiary of VWAG. Schlunk attempted to serve his amended complaint on VWAG by serving VWoA as VWAG's agent. VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service Convention, and that Schlunk had not complied with the Convention's requirements. FWIW, SCOTUS held that the treaty did not apply to service of process within the territory of the country whose courts issued the process. The Public Vessels Act: Context Specific Usage In United States v. United Continental Tuna Corp., 425 U.S. 164 (1976), per the official syllabus: Prior to 1960, the Suits in Admiralty Act authorized suit against the United States in cases involving vessels owned by, possessed by, or operated by or for the United States, if such suit could have been maintained had the vessel been a private one, and provided further that such vessel was employed as a merchant vessel. In 1960, Congress amended the Act by deleting.the latter proviso. The Public Vessels Act authorizes suit against the United States in cases involving "a public vessel of the United States," but bars such a suit by a foreign national unless it appears that his government [96 S.Ct. 1321] allows a United States national to sue in its courts under similar circumstances. Respondent, a Philippine corporation, alleging jurisdiction under both Acts, sued the United States to recover damages resulting from the sinking of its fishing vessel after a collision with a United States naval destroyer. The District Court dismissed the complaint on the ground that, since the destroyer was a "public vessel of the United States," the suit was governed by the Public Vessels Act, that therefore respondent was subject to that Act's reciprocity provision, and that, since there was no such reciprocity, the suit was barred. The Court of Appeals reversed on the ground that the suit, although involving a public vessel, was maintainable under the Suits in Admiralty Act, as amended in 1960 to delete the "employed as a merchant vessel" proviso, free from the restrictions, including the reciprocity requirement, imposed by the Public Vessels Act. Held: Claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act, and, since respondent's claim falls within the Public Vessels Act, the Court of Appeals erred in concluding that that Act's reciprocity provision did not apply. Here the focus is on the relationship of the foreign national to a home state court which may or may not offer reciprocity. The statute is 46 U.S.C. § 781. The case at issue involved a Philippine corporation owned mostly by Americans, which was held to be Philippine nationality and the reciprocity of Philippine courts applied. Presumably in this case a dual national would count as an American and a stateless person would not.
You can be prosecuted for the crime in the U.S., both at the federal level and at the U.S. state level (or both), completely without regard to what happened in the criminal justice process elsewhere. This is true in all of the scenarios you pose, for any offense, and with or without an extradition treaty (of course, unless the treaty had some anomalous provision to the contrary or deprived the U.S. of jurisdiction by statute rather than constitutionally of this crime). The U.S. Supreme Court determined in Heath v. Alabama, 474 U.S. 82 (1985) that the double jeopardy clause of the U.S. Constitution is applied separately with regard to each sovereign involved and that each state and the federal government count as separate sovereigns. In the pertinent part, it states: The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the &quot;peace and dignity&quot; of two sovereigns by breaking the laws of each, he has committed two distinct &quot;offences.&quot; United States v. Lanza, 260 U. S. 377, 260 U. S. 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 55 U. S. 19 (1852), &quot;[a]n offence, in its legal signification, means the transgression of a law.&quot; Consequently, when the same act transgresses the laws of two sovereigns, &quot;it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable.&quot; Id. at 55 U. S. 20. In practice, the U.S. Justice Department and most state and local prosecutors are disinclined to prosecute a crime that has already been handled by another jurisdiction and often have official, but non-binding, policies to that effect. In part, this is because an acquittal in one jurisdiction makes it likely that it is a weak case, while a conviction in one jurisdiction often constitutes sufficient punishment. There could be an issue under the 8th Amendment to the U.S. Constitution (cruel and unusual punishment) over whether a punishment imposed in a U.S. conviction for a crime needs to consider the already severe punishment imposed in another jurisdiction for the same crime in order to prevent the cumulative punishment from being cruel and unusual. But, I am not aware of authoritative case law that resolves that constitutional question. Certainly, evidence of a prior punishment for the same offense could be presented at a sentencing hearing following a conviction in mitigation of the punishment that should be imposed. Indeed, in some states time served pursuant to a conviction for the same crime in another jurisdiction might statutorily count as &quot;time served&quot; for which the defendant is legally entitled to credit at sentencing.
What appears to be the controlling case is DC v. Heller, 554 U.S. 570. In Heller, the meaning of "Right of the People" is relevant, and the court finds that in three instances in The Constitution, these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" However, Art. 1 Sec 2 of The Constitution says that "the people" will select members of The House, and then there is the 10th: Heller says that Those provisions arguably refer to 'the people' acting collectively—but they deal with the exercise or reservation of powers, not rights In other words, "the people" can act collectively, but "the people" have individual rights. In the remaining cases of "the people", the expression "unambiguously refers to all members of the political community, not an unspecified subset". We are then directed to US v. Verdugo-Urquidez 494 U.S. 259, which is a warrantless search case involving a Mexican citizen and a search in Mexico, and the part that Heller finds relevant is that ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." In other case law, Underwager v. Channel 9 Australia, F.3d 361 which cites US v. Barona, 56 F.3d 1087 it is likewise said that constitutional rights expressly limited to the "people," such as those created by the Fourth Amendment, are held only by "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community" "The People" thus starts from identifying "a national community", and then if the context is about rights, each such individual has the right, but in the context of powers, the collective has it.
In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.
I'm not aware of any court ruling about the meaning of the &quot;14 years&quot; clause, but the plain reading of it would be that someone merely needs to accumulate 14 years of residency in the United States in order to be eligible to run for President. There's precedent for this, in the form of Dwight D. Eisenhower: he spent large parts of the period 1942-1946 in Europe before being elected in 1952.
You are looking for extraterritorial jurisdiction: As the term indicates, it connotes the exercise of jurisdiction, or legal power, outside territorial borders. This can include nations claiming jurisdiction over crimes in nearby bodies of water and to specific categories of crimes (such as sexual offenses against underage victims) committed by or against citizens while abroad. Wikipedia has a summary, including a few different nations' application of extraterritorial jurisdiction. The Cornell Law Review has a very extensive essay, What is Extraterritorial Jurisdiction?
Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries.