So-Called ‘Birthright Citizenship’: A Clear Constitutional Violation
“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…” –Sen. Jacob Howard, 14th Amendment Sponsor
“The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.” —George Washington (1783)
Given the far-reaching implications of illegal immigration, and more recently Democrat Party objections to enforcing immigration law on our southern border, our Constitution’s 14th Amendment is in line to receive some long-overdue clarification regarding so-called “birthright citizenship.”
Like most contemporary political debates between Right and Left, the questions raised concerning the meaning of the 14th Amendment are, essentially, about whether we are a nation subject to the Rule of Law enshrined and codified in our Constitution, or we are subjects under the rule of men, and the so-called “living constitution” as amended by judicial diktat and legislative mischief, rather than by the people, as prescribed in Article V.
Does the 14th Amendment mean what its framers intended and the states ratified, or does it mean whatever the courts and Congress have construed it to mean today?
Section 1 of the 14th Amendment, which pertains to immigration and naturalization, 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.”
To discern the authentic meaning of this amendment as originally intended by its framers, we must first start with its plain language, and then further examine the context under which it was proposed and passed. Any debate about the authority of our Constitution must begin with First Principles, original intent.
“All persons born or naturalized in the United States…”
This language is plain and easily understood.
“[A]nd subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This language, too, is plain and easily understood, unless there is a contemporary Democrat political agenda, which does not comport with that understanding, in which case benefactors and beneficiaries of that agenda will interpret (read: misconstrue) it to fit their purposes.
So, what does “subject to the jurisdiction thereof” actually mean? Beyond the apparent plain language definition, a factual interpretation is supported by the context in which this amendment was framed and ratified.
After the War Between the States, freedmen (former slaves) may have been liberated by Abraham Lincoln’s 1863 Emancipation Proclamation, but they didn’t enjoy the same rights as those who freed them. Though slaves were in the United States legally, and thus, “subject to the jurisdiction thereof,” they had no assurance of equal rights.
The Civil Rights Act of 1866 was designed to rectify this injustice by noting in part, “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. … All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
The first definition of “citizenship” in legal references is “nationality or legal status of citizenship.”
The 1866 act defined “persons within the jurisdiction of the United States” as all persons at the time of its passage, born in the United States, including all slaves and their offspring. However, concern that the Act might be overturned by a future Congress motivated its sponsors to make it more resistant to the arbitrary rule of men, so they proposed the 14th Amendment to our Constitution, which upon ratification, would protect the provision of the 1866 Act from legislatures and the courts.
Michigan Sen. Jacob Howard, who sponsored Section 1 of the 14th Amendment (the Citizenship Clause), noted that “subject to the jurisdiction thereof” was “simply declaratory of what I regard as the law of the land already.” He stated further, “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…”
Asked for his understanding of “subject to the jurisdiction thereof,” Illinois Sen. Lyman Trumbull, Chairman of the Judiciary Committee who was key to the Amendment’s passage, responded, “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.”
Sen. Howard followed, “I concur entirely with the honorable Senator from Illinois [Trumbull], in holding 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 … that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
According to University of Texas legal scholar Lino Graglia, in the plain language of its author, those who are born to parents who are legally in the U.S. are thus, “subject to the jurisdiction thereof,” and have claim to birthright citizenship. Just as plain is the fact that the 14th Amendment would exclude those born to illegal aliens.
Though the Supreme Court has not specifically ruled on the constitutional mandates for eligibility to be President, it unanimously affirmed, in its 1874 ruling for the case Minor v. Happersett, 88 U.S. 162 regarding women’s suffrage (and reaffirmed in 1939), the correct interpretation of the Constitution’s Fourteenth Amendment regarding citizenship, further defining the Constitution’s Article 2, sec.  stipulation regarding a “natural born citizen.”
Minor v. Happersett in part states: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
The use of “natural born” at the time of the Constitution’s drafting and ratification in 1789, is the common use as noted in “The Law of Nations” (1758) by Emerich de Vattel. In fact, the “Law of Nations” is referenced in Article I, Section 8, #10 of our Constitution in respect to the authority of the US Congress to make and enforce its laws.
According to Chapter 19, §212 of “Law of Nations”, “The natives, or natural-born citizens, are those born in the country of parents who are citizens.”
That notwithstanding, some Leftmedia “legal experts,” including those at those at The Washington Post), argue that the 1897 Supreme Court decision in United States v. Wong Kim Ark, determined that all those born on U.S. soil to parents who were not citizens at the time of their child’s birth, are entitled to citizenship.
In this case, Wong had traveled back to China with his parents, and was unjustifiably being denied reentry to the United States.
The justices who authored the majority decision in the case, wrote correctly in my view, “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.”
But the key question of Wong Kim Ark’s citizenship is whether his parents were on U.S. soil legally at the time of his birth, and thus, “subject to the jurisdiction of the United States” as stipulated in the 14th Amendment.
In fact, Wong’s parents were on U.S. soil legally, as there was no established immigration statute at the time which would have classified them as “illegal immigrants,” who were unlawfully in our country. Likewise, the court’s reference to all the other immigrants who had entered the United States prior to such statutes, would also be here legally, as would their children born on our soil.
Notably, the High Court ruled that Wong was entitled to reentry because he had all the documentation to return to the United States legally — and could not be denied entry based on the Chinese Exclusion Act of 1882. He followed the law.
Despite the confidence of the 14th Amendment’s authors that it would not be subject to legislative and judicial mischief, subsequent generations of legislatures and judges have so twisted its plain language as to all but alienate it from its original intent — as they have likewise done with much of the rest of our Constitution.
To rectify that, even some on the Left have attempted to correct the “birthright citizenship” error. Former Demo Senate Leader Harry Reid himself introduced legislation back in 1993 which read as follows: “TITLE X—CITIZENSHIP 4 SEC. 1001. BASIS OF CITIZENSHIP CLARIFIED. In the exercise of its powers under section of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.”
In what would most certainly be anathema to Democrats today, a summary of Reid’s bill noted it was to “curb criminal activity by aliens, to defend against acts of international terrorism, to protect American workers from unfair labor competition, and to relieve pressure on public services by strengthening border security and stabilizing immigration into the United States.”
Reid’s legislation died in committee.
So, where does that leave the “birthright citizenship” debate?
Today, more than 20 percent of all children born in the United States are born to those who have entered the United States unlawfully, and who are, by any authentic definition of the 14th Amendment, NOT subject to the jurisdiction of the U.S. because they are not citizens. Yet the Democrat Party leaders assert that the “anchor babies” of illegal immigrants are owed all the entitlements of an American citizen.
The near-term consequences of this fallacious assertion has dire implications for the future of American Liberty, for Rule of Law, and for the very survival of our nation.
In 1776, Benjamin Franklin, John Adams and Thomas Jefferson proposed the national motto, “E pluribus unum” (“Out of many, one”), but that unity will not last much longer if we do not take dramatic action to restore the Rule of Law.
In 1919, Theodore Roosevelt penned these words: “We should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet an American, and nothing but an American. There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag. We have room for but one language here, and that is the English language … and we have room for but one sole loyalty and that is a loyalty to the American people.”
Now, writes Graglia, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry,” making a child born to that immigrant “an American citizen, entitled to all the advantages of the American welfare state.”
For the record, according to both the Justice Department and Homeland Security, “A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment.”
So, according to current laws and regulations, consistent with the original intent of both the 1866 Civil Rights Act and the 14th Amendment as duly ratified on 9 July 1868, the child of a diplomat born in the United States, though that diplomat is legally on U.S. soil, has no birthright entitlement to citizenship. Only if your mother was “subject to the jurisdiction thereof” (Ciudadanía por Nacimiento — sólo si su madre estaba sujeta a su jurisdicción) does one qualify for birthright citizenship.
However, according to the Democrats and their leftist cadres, inconsistent with both the 1866 Civil Rights Act and the 14th Amendment, a child born to anyone who enters the U.S. illegally, has a “birthright entitlement” to citizenship.
Immigrants who go through the rigors of becoming a U.S. citizen legally, take an oath of allegiance which begins: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen…” Perhaps Democrats should also abide by that oath.
As noted at the beginning of this essay, George Washington wrote, “The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges,” but he qualified that welcome, noting, “if by decency and propriety of conduct they appear to merit the enjoyment.”
“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.” —Thomas Jefferson (1823)
For more information, see Claremont Institute’s 2018 analysis, The Birthright Debate.
Footnote: In February of 2019, a new “birthright citizenship” case, the ISIS Bride, was tajeb by the courts. In November, a federal judge ruled that Hoda Muthana, who lived in Alabama but left the U.S. in 2014 to join ISIS, does not meet the standard for citizenship, and therefore the country is not required to repatriate her.
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