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.