The Patriot Post® · So-Called 'Birthright Citizenship': A Clear Constitutional Violation
“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. [1] 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.”
Video: Harry Reid on “birthright citizenship.”
Of course, 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.”
Indeed.
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.”
The notion that the progeny of those who blatantly broke our nation’s laws to enter our country would be rewarded with citizenship was clearly not the original intent of the 14th Amendment.
In fact, as argued by Hans von Spakovsky, senior legal fellow in The Heritage Foundation’s Edwin Meese III Center, “For the first century following the 14th Amendment’s ratification, few legal scholars would have batted an eye at a directive like Trump’s.”
Two esteemed law professors recently argued in The New York Times that the 14th Amendment does not guarantee citizenship to the children of illegal aliens. Georgetown’s Randy Barnett and the University of Minnesota’s Ilan Wurman note, “When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize.”
Constitutional analyst Betsy McCaughey concludes, “Birthright citizenship excluded illegals from day one.” She notes: “There’s only one Supreme Court ruling on birthright citizenship in the last 160 years. Defenders cite the [United States v. Wong Kim Ark] decision, but in fact, it actually undercuts their argument by specifying that 14th Amendment protections extend to all people who ‘are permitted by the United States to reside here.’”
Josh Hammer, senior editor-at-large at Newsweek, insists, “Trump is emphatically correct about birthright citizenship,” adding, “Birthright citizenship for children of illegal aliens is, at best, a live and unsettled legal debate. But the original meaning is quite clear.”
(For additional case law, see The Claremont Institute’s analysis, “The Case Against Birthright Citizenship.”)
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 their own oath “to support and defend.”
Moreover, any discussion about “birthright citizenship” must be in the context of immigration policy and border security. Take a brief walk down memory lane and revisit some prominent Democrat positions on illegal immigration and border security.
Both Bill Clinton and Hillary Clinton were once staunch advocates for a border wall.
Remember when Bill Clinton, in his 1995 State of the Union speech, had this to say about illegal immigration:
“All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public services they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more, by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace, as recommended by the commission headed by former Congresswoman Barbara Jordan. We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”
Video: Bill Clinton on “illegal aliens”
Clinton reiterated these positions in the years that followed, justifying his position by insisting, “We are a nation of laws.” (Laughable, I know, given that the Democrats have a long history of preferring the rule of men over Rule of Law.)
When Clinton was president, leftist Sen. Dianne Feinstein (D-CA), who would later described the Republicans’ immigration reform measures as “cruel and arbitrary,” had this to say:
“Border control is a federal responsibility. We simply don’t enforce our borders adequately. In my state, we have about 2,000 people a day who illegally cross the border. Now this adds up to about two million people who compete for housing, who compete for classroom space. And we have a Medicaid situation. … There are well over 300,000 people [on Medicaid] who are illegal aliens. That presents obvious problems. … I think we can enforce our borders — I think we should enforce our borders. To have a situation where 40% of babies born on Medicaid … are born of illegal immigrants creates a very real problem for the state, which is in deficit. To have 17% of our prison population … be illegal immigrants who come here and commit felonies — that is not what this nation is all about.”
When asked why so little had been done on immigration over the previous 40 years, Feinstein declared:
“The numbers have escalated tremendously. … In Mexico, there is no welfare, there is no AFDC [food stamps], there is no Medicaid, there is no Social Security. … Mexico does nothing to enforce its border. In my view … Mexico must do its share. The day when America can be the welfare system for Mexico is gone. We simply can’t afford it. You’ve seen the costs to state and local governments. … It’s a competition for space, whether the space is a job, the space is a home, or the space is a seat in a classroom. … The people who should be here are those who come legally.”
A year later, Feinstein was joined at a press conference by then-fellow California Sen. Barbara Boxer and Clinton Attorney General Janet Reno. According to Boxer:
“You see before you three women who are very determined to solve the problem. … I look forward to working with [Reno] and my colleague to resolve this, to slow this illegal immigration to a trickle. … This [Clinton] administration is the first one to come up with many points on how to resolve this.”
And Sen. Chuck Schumer (D-NY) declared: “People who enter the U.S. without our permission are illegal aliens, and illegal aliens should not be treated the same as people who enter the U.S. legally. … When we use phrases like ‘undocumented workers,’ we convey to the American people that their government is not serious about combating illegal immigration. … I think it is illegal and wrong.” He insisted: “First, illegal immigration is wrong … and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration.”
Video: Democrats then and now
Nancy Pelosi declared: “Do we have a commitment to secure the border? Yes. … We do need to address the issue of immigration and the challenge we have of undocumented people in our country. We certainly do not want any more coming in.”
In 2003, then-Sen. Hillary Clinton declared, “I am adamantly against illegal immigrants. Certainly, we have to do more at our borders.” In 2006, she reiterated, “What we need is to secure our borders.”
Remember when in 2006, then-Sen. Barack Obama and 89 other Senate Democrats voted to authorize $1.4 billion for 700 miles of border fencing. Sen. Dianne Feinstein (D-CA) wanted walls along the entire Mexican border.
In 2007, Obama said: “We agree on the need to better secure our border, and to punish employers who choose to hire illegal immigrants. We are a generous and welcoming people here in the United States, but those who enter our country illegally, and those who employ them, disrespect the rule of law, and they are showing disregard for those who are following the law. We simply cannot allow people to pour into the United States undetected, undocumented, unchecked, circumventing the line of people who are waiting patiently, diligently, and lawfully to become immigrants.”
In 2008, then-presidential candidate Clinton insisted, “I do not think it is appropriate to give a driver’s license to someone who is here undocumented.”
As president, Obama insisted: “We are a nation of laws. Undocumented workers broke our immigration laws, and I believe that they must be held accountable. When I took office, I committed to fixing this broken immigration system and began to do what I could to secure our borders. Today our immigration system is broken and everybody knows it. … We will [add] additional [border] resources for our law enforcement personnel, so that they can stem the tide of illegal crossing and to speed the return of those who do cross over. If you are a criminal, you will be deported. … We expect people who live in this country to play by the rules.”
Video: Obama’s Immigration Lies
In his 2013 State of the Union, Obama promised to put illegal immigrants “to the back of the line behind the folks trying to come here legally.” He declared:
In 2013, every Senate Democrat voted to authorize $7.5 billion for additional border walls proposed by the Obama/Biden regime.
In a 2014 address to the nation on immigration reform, Obama declared: “Families who enter our country the right way and play by the rules watch others flout the rules. Business owners who offer their workers good wages and benefits see the competition exploit undocumented immigrants by paying them far less. All of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America. … Undocumented workers broke our immigration laws, and I believe that they must be held accountable -– especially those who may be dangerous. … If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.”
In 2014, then again-presidential candidate Clinton said regarding Barack Obama’s unconstitutional DACA decree, “The numbers are increasing dramatically. … We need to do more to provide border security this side of Mexico. … We have to send a clear message that just because your child gets across the border, that doesn’t mean the child gets to stay. We don’t want to send a message that is contrary to our laws.”
In 2015, she said, “I voted numerous times when I was a senator to spend money to build a barrier to try to prevent illegal immigrants from coming in.”
In 2016, she said, “In my first 100 days, I will introduce legislation for comprehensive immigration reform.”
Fortunately, Clinton was not elected, and Donald Trump based his first-term candidacy on resolving the illegal immigration issue.
In 2015 Donald Trump: “It’s a national embarrassment that an illegal immigrant can walk across the border and receive free health care and one of our Veterans that has served our country is put on a waiting list and gets no care.”
Then came Joe Biden who, before opening our southern border floodgates in 2021, was for border security before he wasn’t?
As incoming chairman of the Senate Foreign Relations Committee in 2006, Biden declared we must secure our border, including more border fences: “People are driving across that border with tons, tons — hear me — tons of everything from byproducts for methamphetamine to cocaine to heroin. And it’s all coming up through corrupt Mexico.”
In 2007, Biden unintentionally declared some timeless “truisms” about border security, the first being: “It makes sense that no great nation can be in a position where they can’t control their borders. It matters how you control your borders … not just for immigration, but for drugs, terror, a whole range of other things.” And he then insisted, “I have been arguing for more protection at the borders.” Try that lie on the families of American citizens who have been victims of violent assault, rape and murder by illegal aliens.
Biden added: “The second truism is that this nation is such that people in the country should have the first opportunity to be able to have jobs that pay well and have jobs that are decent…” But unbridled illegal immigration creates competition for jobs and puts signifiant downward pressure on wages,
Of course, controlling borders does make sense, but Biden said it before he began his slow decline into the non compos mentis fog, and Demos decided the influx of illegal aliens would bolster their election prospects.
Remember when Biden criticized George W. Bush for “putting a higher value on tax cuts for the wealthy than he did on protecting the border”? He complained about “our conservative business friends” who plan to bring in workers on “work permits that will take away jobs of Americans,” and decried “the allowance of a significant increase — several hundred thousand people a year — to take regular jobs, particularly in the construction industry.”
Got that? “Several hundred thousand people a year” versus the 9-12 million Biden has invited in.
So, what’s changed in the last two decades? Illegal immigration has now become a more significant burden on federal and state budgets, a greater threat to undermining wages and job opportunities for U.S. workers, and a national security threat — but the Democrats are hell-bent on opening that Latino pipeline as their most promising future constituency.
It is long past time to restore and protect the value of American citizenship.
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.”
So, which will it be, then: Liberty and Rule of Law or the rule of statist Democrats?
“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)
Not since President Dwight Eisenhower’s “Operation Wetback” (yes, that was the name of Ike’s program to deport millions of illegal aliens) has any administration seriously dealt with illegal immigrants — until Donald Trump arrived in 2017. He made stopping illegal immigration a centerpiece of his administrative objectives.
Trump made progress against almost insurmountable odds in his first term. But Joe Biden and his Democrat Party hacks orchestrated their bulk-mail ballot fraud in 2020 to dispose of Trump. Then they opened our southern border in order to rig future elections. And not only is the flood of Biden’s illegal immigrants now breaking the bank of the Demos’ so-called sanctuary cities and states, but the flood of bloodshed by violent immigrants is on the Biden/Harris regime and will take years to clean up.
Fortunately, Trump is back for a second term in 2025, and one of his first actions as president in the wake of the Biden/Harris disaster was to issue an executive order to end so-called “birthright citizenship.” The anchor baby myth, as I have argued for decades, is an abject violation of our Constitution and Rule of Law.
Update As expected, a federal judge temporarily blocked Trump’s executive order denying American citizenship to children born in the U.S. to illegal aliens.
Of course, this was a setup for a Supreme Court review, and in a 6-3 decision on Trump v. Casa, SCOTUS ruled that “Universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” This was a major win for Donald Trump’s Executive Orders, particularly on so-called “Birthright Citizenship,” and a strong rebuke of power-hungry lower-court judges. Justice Amy Coney Barrett wrote,“The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.” She added, “The issuance of a universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.” Furthermore, “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” Thus, lower courts must now reconsider hundreds of federal lawsuits filed by litigious activists against Trump administration policies on a broad range of issues, all of which have little merit other than serving the Left’s agenda to stall Trump’s agenda.