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Birthright Citizenship was Never Intended by the 14th Amendment Authors
The Left has done a great job of influencing the issue of birthright citizenship. Most Americans oppose granting automatic citizenship to children born to illegal immigrants but they also believe that we’re stuck with this policy.
They’re told repeatedly that the practice is enshrined in the Constitution’s 14th amendment, that it has been affirmed by the Supreme Court, that the jurisprudence around it is settled law and that challenging the matter now is unconstitutional and disloyal.
None of that happens to be true, but in the meantime, we’re saddled with a logically incoherent immigration system. Yes, immigrants are central to America’s story. But immigration law must be dedicated to the common good, not the benefit of those willing to flout our laws.
Immigrants should be vetted to ensure that they are likely to assimilate and be of value to their adopted country. Instead, we incentivize illegal immigrant mothers to cross the border before birth so their offspring can be entitled to lifelong citizenship.
So did the writers of the 14th Amendment botch the job, subjecting their descendants to such a dysfunctional system? No. In language more commonly understood at the time, they plainly stated “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
The 14th Amendment was written in 1868 to clarify that the newly emancipated slaves were granted all the privileges and rights of citizenship. There is nothing in the historical record to suggest that the authors had the slightest intent to grant citizenship to all born on American soil, much less those with parents living here illegally. The jurisdiction language was added specifically to prevent such an interpretation.
Advocates of constitutional originalism should also note that the author, Senator Jacob Howard of Michigan, explained it was meant to describe “a full and complete jurisdiction, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
He clearly is not describing an illegal alien. Senator Lyman Trumbull, an influential supporter of the amendment, also emphasized that “jurisdiction meant not giving allegiance to anyone else.”
The legal scholar Lino Graglia points out that, as the authors would have understood it, those who are born to parents legally in the US “are subject to the jurisdiction thereof and so would have a constitutional claim to birthright citizenship.” Just as plain is the fact the 14th Amendment, as written, would not apply those born to illegal aliens, soldiers posted in a foreign country or foreign diplomats.
Birthright advocates claim that the 1897 Supreme Court case of Wong Kim Ark clinches their claim that children of illegal immigrants born here are entitled to full citizenship. Wong had traveled back to China with his parents and was unjustifiably denied reentry until the decision was overturned by the court. They ruled that to bar Wong would be “to deny citizenship to thousands of persons of [European] parentage who have always been considered and treated as citizens of the United States.”
That makes sense given that Wong had the necessary documentation and his parents had been on American soil legally at the time of his birth, there being no laws defining them otherwise at the time. This is exactly the reason why this much-ballyhooed ruling does not apply to the practice of granting citizenship to the children of illegal aliens. In fact, the Supreme Court has never opined on the question.
The clear intent of the amendment, the language and the historical record are all in accord. Yet
the 14th Amendment has been completely untethered from its original meaning and impact. The Left and the Democratic Party have taken something meant to right a wrong and manipulated it to the advantage of those entering the country illegally.
There are at least 5 million children in America who have received citizenship inappropriately — about one in eight US births. That works well for those who relentlessly seek ways to produce millions of future Democrats.
The rest of us should continue to respect our Constitution and our history. The incredible privilege of citizenship should go only to those who merit it.
Published in General
With sleazy Dems, we are going to have to amend the amendment to say exactly what we intend. It might require changing from soil to blood and simply requiring at least one parent be a citizen. People born to US parents overseas are citizens.
Just like before, we have to add amendments to curb bad Democrat behavior, amendments that should be unnecessary.
His parents were prohibited from becoming naturalized citizens due to the laws at the time; they were however here legally. He was rightly adjudicated a citizen due to the 14th amendment.
That is a far cry from someone seeking to profit from illegal activity. The prohibition of profiting from illegality has roots in common as well as written law.
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
I’m a strict constructionist on Constitutional matters. If the authors had meant something other than the plain meaning of the above sentence, they did an awful job expressing it. Much as I wish that it said something else, it does not. I’m not going to start looking for penumbras and emanations because the plain meaning of the text doesn’t suit me. Thats what progressives do. If we don’t like what it says, there is a clear path to change it.
Just to be clear, what does “subject to the jurisdiction thereof” mean to you?
When I look at the above I have to ask “why did it take until the 1924 for Indians to be given birthright citizenship?”
The answer is that they were not “subject to the jurisdiction thereof.”
Illegal aliens have not made themselves subject to the jurisdiction thereof nor should they profit from their illegal acts – hence anchor babies should not be a thing.
I think there is a very simple, family-supportive fix for this problem: a baby is the same nationality as his or her mother.
The Fourteenth Amendment made sense at the conclusion of the Civil War. It was needed to establish the citizenship of the children born to slaves who had been brought here against their will from other countries. By some estimates, half of the population of South Carolina were slaves at that time. That’s a lot of people. But that amendment, like Prohibition, no longer serves American interests.
It is the natural order of life that a mother and baby should be the same nationality. Indeed, I believe that’s what happens for Americans abroad whether they are in the military or State Department or tourists or students: any babies born to American mothers are automatically American citizens, as it should be.
In some ways, the Fourteenth Amendment is breaking up families, which is what we see as the result. The truly humanitarian solution would be to not come in between mothers and their babies.
Furthermore, citizenship conveys obligations as well, such as taxes and military service in times of war. We should treat people with that in mind: the lifetime price for citizenship. Babies should be with their moms until they are adults and wish to join the United States of their own volition.
Same applies to fathers.
Unfortunately, just like many other parts of the Constitution, the 14 th amendment isn’t intelligently worded. It’s vague. Saying that it was meant to apply to slaves doesn’t cut it. It could have mentioned slaves specifically just like it mentions Indians, but they chose to use more general language. Why? Quoting what one of the authors of the amendment thought it meant is of no help either. What about what all those state legislators who ratified it thought it meant? After all they are the reason it became law.
Trump’s order says that citizenship will not be granted to someone born in the US “when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
This includes scenarios where both parents are legally in the US. It’s a real stretch to say that such a child isn’t a citizen under the 14th amendment.
It seems clear enough. Indians. Foreign Ambassadors.
Recall, in the 1860’s and decades before and after, the US was desperate for people. One of the specific charges against the British Government made in the Declaration of independence was that they restricted needed immigration. We had oodles and oodles of land and not enough settlers. I’m not at all surprised that the 14th Amendment cast as wide a citizenship net as possible.
Not who does it mean, what does it mean? (What is the principle involved here?)
I suspect the authors did tell us the plain meaning of the sentence above exactly like someone of that period would. They likely even explained it outside of the proposed amendment wording in equally clear language. I posit that it was the epistemic arrogance of later Progressive periods that provided rulings beyond the actual simple understanding that now serve to hide that intended meaning from meaningful debate because it “seems clear enough” to the modern ear.
(Submitted with all due respect…your opinions may very well be more informed and more accurate than mine. This is just my view of it from the bits and pieces of “knowledge” I have been collecting.)
Why should outsiders have a right to demand it?
There are opinions on both sides. This opinion we are treated with on ricochet is well-done and worthy of a bookmark. The problem is everything pro and con on such a worded amendment is just opinion. One would hope common sense would win out but it might take more. There are ways to mitigate the harm. End chain migration and shut down the border. Ship pregnant women home immediately. Such actions will help.
This in the article nails it:
That is true. However, the reason I don’t think it would work in my scheme to achieve transparency and simplicity is that it would require a national or international DNA database, which I don’t think would be in anyone’s interest in the surveillance state in which we live.
There might ways to accomplish this without such a database. For example, a father could willingly give hospitals something for a DNA test to match the baby’s, and as long as the hospital or clinic were satisfied, that would suffice for citizenship. The father’s American citizenship would establish the baby’s.
I don’t know.
But what seems clear and straightforward and simple to me is that the baby’s citizenship is always the same the mother’s until and unless it is changed legally by her such as by her giving up her child for adoption at some point.
My idea is to keep citizenship extremely simple to establish, and doing it this would help us meet the goal of keeping a baby together with his or her mother, which would prevent mothers trying to give something of worth to their babies by having those babies on the American side of the border and then leaving those babies here while they return to wherever those mothers came from. Although the more common scenario by far is for the mother and/or the father to stay with their American citizen child in this country, which is frankly better than having the children left here, having children here without parents happens quite frequently.
That has been a real problem. We can’t take care of those children. And it’s not right to have a law that breaks up families that way. We’ve created an incentive for mothers to abandon their babies here. I think we need to make the humanitarian case that families belong together and leaving a baby on the American doorstep is not something we should be doing. Let’s review our foreign aid and charity to the countries that have fallen into misery so much that mothers would even consider such a thing.
It doesn’t fix all the problems surrounding this issue, but it fixes some of them to say simply that a baby is the same nationality as his or her mother.
They shouldn’t, but you can’t base that on the 14th. What does “naturalized” mean? Why doesn’t it define it? Much less “subject to the jurisdiction”? A lot of the discussion revolves around whether the parents are subject to the jusrisdiction there of, even though the amendment doesn’t mention the parents. It only mentions the person born and whether he or she is. It’s just a mess. Judges use a number of rules of interpretation to apply laws. I think there should be a new one: when a statute or constitutional provision doesn’t make any sense, the judge in his discretion can choose to ignore it and defer to other relevant statutes or provisions that do make sense. That would be the best route to upholding Trump’s recent birthright citizenship orders.
I don’t think a majority of Americans would define someone who has been legally living in the U.S. for years as an “outsider.” I’ve asked this before and didn’t get an answer. How are American citizens being harmed if someone who is a legal permanent resident alien has a baby and that baby is granted citizenship?
In the 1860s there was widespread fear of the freed slaves competing for jobs in the northern latitudes. And there was also widespread fear of immigrants taking jobs from people.
The people who wanted more immigrants in the 1850s through the 1870s were the same then as now: businesses who wanted cheap labor. Immigration coincided with growing labor movement, and immigrants were often the people businesses used to run their factories when the unions went on strike.
Such an amendment would be very simple:
“No person born within the jurisdiction of the United States of America shall become a citizen of the United States, unless at least one of that person’s parents is a citizen of the United States or legal resident thereof.”
Think it stands a chance?
How much pushback to this existed before this latest slippery slope goal was reached by the open borders and pro illegal immigration forces? Before the foreigners used having babies in our country as a means to jump the immigration line? Even those who naturalized resent the line jumpers. Once they tried to take a sovereign country’s borders away, let outsiders tell us they, not us, determine who can enter our country, and that they were entitled to taxpayer funded welfare either directly or through grants, the backlash was broad and strong. It is a shame that those here legally have been swept up in this but that is a predictable unintended consequence of our corrupted politicians, the illegals, and the left’s ideology…. sometimes the blowback must be excessive to get the politicians’ attention.
Indians weren’t included initially because they fell under a different government and still retain some of their Indian Nation governance even today on their reservations.
Mexicans, for example, in the US still fall under the jurisdiction of the Mexican government. Their embassies here will issue them an ID card. We don’t have pockets of land belonging to Mexico, no Mexican reservations here they live on.
Just to clarify and add to my comment 13: what has happened in New England quite often is that parents who are here illegally but have children born here are deported whereupon they leave their teenaged children here on their own because it is better for their children here than the country the parents came from. But we don’t have the foster care homes for these kids. It’s a problem. We really need to address the “anchor baby” issue. That said, the anchor baby problem is not as big a problem, from what I’m skimming in articles coming up in Google searches, today as it was ten years ago for a variety of reasons. The reason might possibly be that Biden didn’t enforce the law and didn’t conduct deportations as often and so there weren’t as many children “left behind” under his administration. I don’t know for sure, however.
And, the “native” countries of the parents likely consider such a child a citizen of THAT country. (Just as the US does for children of US citizens when abroad.) And at least in theory, the US is supposed to allow only one citizenship at a time.
Considering the known behavior of the cartels etc, it would probably also be necessary to do the DNA matching for the mothers.
Because, as I just pointed out, such a baby is probably already considered to be a citizen of the parents’ home country. Just as the US does. And we shouldn’t allow “dual citizenship” etc. Indeed, the naturalization process specifically rejects that.
I don’t really have a problem with refining the rules to include such a person, but, if the person wishes to have a child, how is that person harmed by applying for citizenship?
https://www.youtube.com/watch?v=foeoed-OywE
It takes several years and a lot of hassle to become naturalized. So let’s say a couple has lived here for 3 years or more and have a baby. Eventually, the parents become naturalized, and yes, when that baby turns 18, he or she can go through the process to become naturalized, too. But why make someone go through all that red tape to become a citizen of the only country they have ever known, the country they were born in? It just grates on my conservative nerves to think that we ought to make more people grind through more government bureaucracy.
Maybe it’s a good thing to have reasons for people to want to become citizens, without dilly-dallying around for years?
I think it’s a sad reality simply because of the problems that have come about because (a) people were coming here just to have their baby in an American hospital or clinic so as to have that valuable birth certificate or (b) their having a baby here, their being deported because they were here illegally, and leaving their child here because the child was born here and they were not. This became a big problem in New England a few years ago–I don’t know what the situation is right now. But our states ended up with hundreds of kids who were teenagers who needed guardians. We simply didn’t have enough families to take them in. Their parents left them here because they knew the country would support their child and give the child a better life. Those kids will most likely grow up to resent the United States for not letting their parents stay or for treating them, in the kids’ opinion, as second-class citizens.
Now that we know for sure that these are some of the things parents will do, it seems we are creating new problems by not fixing this law. And separating parents from their children.
We really need to get organized, for everyone’s sake.
Australia ended the illegal immigrant human traffickers problem when they got tough on sealing their borders. When the money dried up because the would-be immigrants knew they’d never get in anyway, so did the human-trafficking racket.
What we really need to do is figure out ways to help the countries in Central and South America get their act together so that their citizens won’t be leaving in desperation for jobs–that is, food and shelter.
“Separating parents from their children” is something that happens every day, when parents break the law. Not our fault, it’s THEIRS. One more reason why parents shouldn’t commit crimes.
As an American citizen, I do not want the responsibility for this group of minors who do not have parents or guardians. Under the age of 18 in this country, people are entitled to the protection of a parent or guardian. We just don’t have enough foster care families.