“Birthright Citizenship” and the 14th Amendment

Donald Trump’s recent proclamation that he is opposed to so-called “Birthright Citizenship” for the offspring of illegal aliens born in the United States has set off hysterical cries of outrage and protest. This from the President confirms again that much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials who are bound by rigid protocols of political correctness—finds refreshing. The topic of “Birthright Citizenship” is a perfect example.

Remember when he first brought this up during his 2016 presidential campaign? Within hours of his mentioning it in the shadow of the “Caravan” in Mexico headed for the U.S., there has been more discussion (fueled by considerable popular interest) of this poorly-understood aspect of immigration policy than ever before. Whether or not one agrees with Trump’s immigration policies, one has to concede that he is advancing a national conversation on a critically important issue.

The issue is whether children born in the United States—even if their parents are foreign nationals who entered this country illegally—automatically become citizens. Current law supposes that they do—a concept termed “Birthright Citizenship.” Many people (in error) think this concept originated from the Constitution and have been confirmed in a U.S. Supreme Court decision. Not so.

Section 1 of the 14th Amendment—the Citizenship Clause—states that “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.”

The 14th Amendment

The origins of this language are a bit hazy, but it must be remembered that the purpose of the 14th Amendment was to repair the infamous Dred Scott v. Sandford decision (1857) and recognize citizenship for the newly-freed slaves (but not members of Indian tribes living on reservations).  The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators (the 39th Congress) who framed the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”   Foreign nationals in the United States and children who become citizens of a foreign country at birth (by virtue of their parents’ citizenship) would obviously be excluded from this definition.

Yes, the language of the Citizenship Clause is slightly different than that of the Civil Rights Act of 1866, but there is no real evidence that the 39th Congress intended a different meaning.  In fact, the sponsor of the Citizenship Clause, Senator Jacob Howard (R-MI), stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “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.”

The record of the debate in 1866 is important and should definitely be recounted and considered in this pending issue for which President Trump is planning on issuing an executive order to end.

14th Amendment History

When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What did he mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.”  Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and therefore its “jurisdiction”), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

Senator Howard agreed with Trumbull’s explanation, saying:

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.

This communication from Senator Howard supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens).

Hinging the entire debates over the Citizenship Clause in the 39th Congress admittedly presents some occasional inconsistencies and questions, leading reasonable people—on both the Left and Right—to disagree about the meaning of the Citizenship Clause. Conservatives scholars such as John Eastman, Lino Graglia, Edward Erler, and even former Attorney General Edwin Meese, have written in opposition to Birthright Citizenship. However, it is important to note that this point of view is shared by liberal scholars such as Yale Law School Professor Peter Schuck, who coauthored a book with University of Pennsylvania political scientist Rogers Smith, entitled Citizenship Without Consent: Illegal Aliens in the American Polity (1985) making the same argument now critical in this new “Trump debate.” Federal Judge Richard Posner has called the current practice of Birthright Citizenship “an anomaly” that Congress “should rethink” because it “makes no sense.” Judge Posner went on to state (in a published decision, Oforji v. Ashcroft, 354 F. 3d 609 (7th Cir. 2003)) that “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” Posner volunteered that he “doubt[ed]” whether a constitutional amendment was necessary to change the current practice of birthright citizenship.

There are other respected commentators who take a contrary position. But a considerable body of scholarship supports the view that the Citizenship Clause does not compel Birthright Citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the claims of some (including the editorial page of the Wall Street Journal), amending the 14th Amendment is not required. In fact, such legislation has been introduced in the past—for example,  S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)—and supported by Republicans and Democrats. That includes former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil. In Oforji, Judge Posner stated that “I hope [H.R.1567] passes.”

Is There a SCOTUS Opinion?

The U.S. Supreme Court has never ruled in favor of Birthright Citizenship for the children of illegal immigrants. The case most often used to make a case for it — United States v. Wong Kim Ark (1898) —involved the offspring of a Chinese couple present in the United States legally. And the frequently cited language from Plyler v. Doe (1982)—a 5 to 4 decision written by the activist Justice William Brennan, hardly a strong authority—is only mentioned in a footnote!

Automatic birthright citizenship for tourists and illegal immigrants is an anomaly; the United States and Canada are the only developed countries in the world to recognize it. No European country does. American voters overwhelmingly oppose Birthright Citizenship, by almost 2 to 1 according to a recent Rasmussen poll.

Summary

Whether or not you approve of Donald Trump’s policies, methods of communication, divisiveness, arrogance, or just don’t like his hair, he has brought a very serious issue to the forefront. Birthright Citizenship applies to somewhere between 200,000 and 300,000 births a year in the U.S. to illegal immigrant mothers. Those infants are currently considered American citizens.

It is uncertain how many of those illegals actually come to the U.S. expressly to birth babies here to secure their citizenship. But it is beyond contention that most do so.

Those who cry that Americans who are against Birthright Citizenship are uncaring, ungiving, unkind, and selfish need to understand that those who feel that way are on the most part strict adherents to the rule of law. Those Americans trust the U.S. Constitution as written and amended and expect the federal government to — with the power that lies within every branch and agency — to uphold the laws of the U.S.

Once again, this travesty that is entrenched in misunderstood writings and assumptions derived from legal scholars could be done away with by the U.S. Congress simply doing their job: fix existing laws by changing those laws or simply passing new ones to replace those.

One should ask here: why has not Congress already corrected this issue? Do members of Congress in the Majority have a vested interest in the perpetuation of the continuance of Birthright Citizenship, ignoring the spirit of the U.S. Constitution?

Conspiracy theorists lay the blame for such at the feet of a class of political elitists who see doing so as a way to build and/or increase a governing majority who draw their political power from adding citizens in any way possible who hold an obligation to those who make such citizenship possible. Conspiracy theorists or not, the best way — and the only RIGHT way — to alleviate the question and inequities of Birthright Citizenship is for Congress to pass legislation.

And in the meantime, look for an executive order doing so from President Trump. Then look for the U.S. 9th Circuit Court of Appeals to quickly attract cases from Leftist immigration attorneys to stop presidential intervention.

Oh…without Congressional action on this, it will be ultimately determined by the Supreme Court. There are now FIVE Constitutional “originalists” on the bench. Reckon how they will vote on this?

 

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