Who Decides What the 14th Amendment Means?
The Constitution and its amendments mean what its authors said, not what modern politicos wish.
If you want to understand what the Constitution means, read The Federalist Papers. In those essays, the Constitution’s primary author, James Madison, as well as leading defenders Alexander Hamilton and John Jay, explain what the Founders meant in the legal document that established our government. Likewise, if you want to understand what the 14th Amendment means, revisit the words of its authors. Specifically, let’s look at the clause “subject to the jurisdiction thereof,” which is being debated after President Donald Trump’s proposal to eliminate by executive order birthright citizenship for babies born to illegal aliens in America.
Michigan Sen. Jacob Howard, who sponsored Section 1 of the 14th Amendment (the Citizenship Clause), noted in 1866 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 [emphasis added].”
In 1873, the Supreme Court concluded (albeit in nonbinding comments indirectly related to the case) that “subject to the jurisdiction thereof” was meant to exclude the children of “ministers, consuls, and citizens or subjects of foreign states born within the United States [emphasis added].”
However, in 1898’s Wong Kim Ark decision, the Court ruled that a man born in the U.S. to Chinese-immigrant parents was a citizen, as were “all children here born of resident aliens.” That still doesn’t settle the question of illegal aliens.
Essentially, what this debate is about is what all contemporary constitutional debates are about — whether the Constitution is to be understood as our Founders and subsequent authors of amendments intended it to be understood (Rule of Law), or, as Democrats insist, however the political majority du jour wants to interpret it to comport with its contemporary political agenda (rule of men). As Thomas Jefferson warned, the latter means one thing: “The Constitution … is a mere thing of wax in the hands of [those who will] twist and shape into any form they please.”
Unfortunately, not a few Republicans and other conservatives insist that Trump’s interpretation is unconstitutional, but we believe this is because they fundamentally misread the 14th Amendment and its authors. To be sure, whether Trump has the authority to, by executive order, undo decades of precedent is another matter — one he intends for the courts to help decide.
Undoing this unconstitutional damage will require all three branches, however. It is necessary for Congress to pass a law reestablishing the originalist interpretation of the 14th Amendment, because the Immigration and Naturalization Act (INA) of 1952 also establishes in U.S. Code what “jurisdiction” means, and, arguably, that includes children born to illegals — at least by the interpretation of the State Department. Sen. Lindsey Graham, who recently found his spine in the Brett Kavanaugh debacle, has introduced a bill to set the record straight.
Bottom line: The 14th Amendment was proposed and ratified because of concern that a future Congress might alter the 1866 Civil Rights Act granting citizenship to slaves. Ironically, the argument for birthright citizenship for children born to illegals grossly alters the meaning of the 14th Amendment — and it’s a case study of how Democrats erode the plain language of our Constitution.