Why the Phrase “Subject to the Jurisdiction Thereof” Has the Same Meaning in the U.S. Code as in the Constitution (Plus Mea Culpa)
Andrew Hyman

In a recent post here on this blog, I quoted the Immigration and Nationality Act (INA) including the word “naturalized.”  Subsequently, John Vlahoplus responded here at this blog, saying that that word (“naturalized”) was intended in the INA to include only naturalization after birth, instead of immediately at birth.

Here is a link to the full text of the INA as enacted in 1952.  I quoted from section 318 (which is at page 244):

Except as otherwise provided in this title, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act.

The INA also says the following in section 101(a)(23):

The term “naturalization” means the conferring of nationality of a state upon a person after birth, by any means whatsoever.

This Section 101 of the INA begins with the words “As used in this Act….” so we are not talking about linguistic drift or about linguistic stagnation relative to prior usage, so much as we are talking about technical jargon.  A statute can define terms in whatever technical way that Congress pleases.

The Constitution requires naturalization at birth to obtain citizenship at birth, if citizenship is not acquired by constitutional right automatically.  However, the INA apparently uses the word “naturalization” in a narrower technical sense, that excludes obtaining citizenship at birth.

So it appears I made an error by overlooking the technical definition of “naturalization” in the INA.  Thanks to John Vlahoplus for the correction.

However, my conclusion is still the same, because the INA includes no technical definition of “subject to the jurisdiction thereof.”  Had Congress wanted to depart from the Constitution’s original meaning, then they would have included a technical definition as they did for the word “naturalization.”  Or Congress could have used a different phrase than the Constitution uses, to indicate a different meaning.  Instead they chose to use a constitutional phrase knowing that the Supreme Court had not yet fully explained its meaning.

Even if the Court had fully explained the meaning of that constitutional phrase prior to 1952, Congress’s use of the phrase in the INA would have remained subject to revised explanations by the Court.  After all, as recently as 1944, the Court said this:

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.

But the Court has not yet fully explained the meaning of that phrase in the Fourteenth Amendment.  Congress in 1952 probably liked what the Court had said so far on the subject, and chose to gamble that the full explanation would be to their liking.