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Allyne Caan / Aug. 20, 2015

What About Birthright Citizenship?

Five little words have sparked quite a heated debate.

Who thought five little words — “subject to the jurisdiction thereof” — could spark a national debate of presidential, not to mention constitutional, proportions? As 16 Republican contenders try to one-up each other on immigration platforms while striving to be as popular as the 17th, Donald Trump, this lexical quintet from the 14th Amendment is taking center stage.

At issue is so-called “birthright citizenship” for babies born on U.S. soil to illegal aliens. Section 1 of the 14th Amendment states, “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.”

In the land of constitutional make believe, this amendment has been misinterpreted through practice and even court precedent to mean if a pregnant woman manages to sneak across the border just in time to deliver stateside, her child lucks out and wins U.S. citizenship, all rights and privileges thereof accompanying.

While such birthright citizenship has stirred debate before, Trump’s recent declaration, coming as part of his immigration plan, that he would end birthright citizenship, has brought this melting pot to a boil.

His position should not cause shock, however, as birthright citizenship for illegal aliens is nowhere conferred in the Constitution. If anything, the 14th Amendment and surrounding context provide compelling evidence that the Constitution actually denies such citizenship.

As we’ve noted before, the 14th Amendment emerged from the Civil Rights Act of 1866, which was designed to guarantee equal rights to former slaves. To ensure this Act wouldn’t be upended by a future Congress, legislators proposed adding its provisions to the Constitution. Central to the Amendment is the provision that citizenship is limited to those not simply born or naturalized in the U.S. but also “subject to the jurisdiction thereof.”

What does this clause mean? According to legal scholar Lino Graglia of the University of Texas Law School, Illinois Senator Lyman Trumbull, one of the principal authors of the Amendment’s citizenship clause, clarified this phrase as meaning “[n]ot owing allegiance to anybody else.” And fellow author Senator Jacob Howard of Ohio concurred that jurisdiction was all-encompassing, the same “in extent and quality as applies to every citizen of the United States now.”

Hence, individuals born on U.S. soil to foreign diplomats don’t automatically gain U.S. citizenship — at least they’re not supposed to. Neither did U.S.-born children of American Indians until Congress passed the Indian Citizenship Act of 1924.

Originally, Graglia writes, “Children born to Indian parents with tribal allegiances were therefore necessarily excluded from birthright citizenship, and explicit exclusion was unnecessary. This reasoning would seem also to exclude birthright citizenship for the children of legal resident aliens and, a fortiori, of illegal aliens. It appears, therefore, that the Constitution, far from clearly compelling the grant of birthright citizenship to children of illegal aliens, is better understood as denying the grant.”

Clearly, the framers of the 14th Amendment had no intention of enshrining birthright citizenship as a reward for crossing the border illegally.

Yet even many on the Right are loath to denounce birthright citizenship.

In a passionate defense of birthright citizenship, The Federalist’s Ben Domenech writes that revoking “American status” and deporting en-masse children of illegal aliens would be a “daunting political and legal proposition.” He calls birthright citizenship “a beautiful example of what makes America unique” and claims that ending birthright citizenship would require a constitutional amendment.

Domenech is almost surely right about the political ramifications because, for one thing, nightly newscasts would be full of stories of families torn apart by immigration officials. But he’s wrong about needing a constitutional amendment to correct the misinterpretation of another one.

We celebrate legal immigration as a beautiful example of American uniqueness, but historical evidence does not support the idea that the 14th Amendment was meant to institutionalize birthright citizenship for everyone born on American soil. Far from it.

Unfortunately, continued misinterpretation of the 14th Amendment has incentivized illegal immigration and worsened our border crisis. Restoring both Rule of Law and the integrity of our immigration system will require ending this misinterpretation — a daunting feat to be sure. But it’s one worth taking on if we hope to preserve the beauty of America for all citizens, natural born and immigrant, who love this nation enough to respect her laws.

Correction: This article originally stated that American Indians are not automatically granted citizenship. They were not until Congress changed the law. Likewise, children of diplomats receive a U.S. birth certificate, which for all practical purposes is enough to gain citizenship.

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