Because of the hoopla over President Trump’s declaration that he would be issuing an Executive Order ending “birthright citizenship” I feel compelled to once again wade into this. This is a recycling of an old blog post but one that I believe is necessary today. Most on the Left and some on the Right fail to comprehend the actual wording and the intent of this amendment. It, like many things, has been morphed into something other than the Original Intent. I offer my two-cents hoping to bring some clarity to the argument.
Illegal Immigration and Amnesty are not secondary issues in today’s political climate as some seem to think, including Bret Baier of Fox News in the past presidential election. It is an economic issue, a national security issue, national sovereignty as well as a social issue. At one time I thought that if a person was born in the United States they were automatically afforded citizenship by the Constitution of these United States. As a student of history in college and over the past 50 plus years I have discovered the writings of the authors of the 14th Amendment and their view of what that amendment was designed to do.
The 14th Amendment, as per Senator Jacob M. Howard of Michigan in 1866 wrote, “…every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.”
Subject to the jurisdiction does not simply mean being in the country physically but means “not owing allegiance” to any other foreign nation. It is not just the physical jurisdiction but the complete jurisdiction of the United States of America. Illegals cannot make that claim for they are ILLEGAL! In 1866 Senator Edward Cowan wrote, “A foreigner in the United States has a right to the protection of the laws; but is not a citizen in the ordinary acceptance of the word…”
The words “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. The Native Americans were not initially included although born here because it was not perceived that their allegiance was not complete to the United States but to their own tribal councils. Regarding illegal aliens in the United States unlawfully, their native country has a claim of allegiance on the child. Therefore, the completeness of their allegiance to the United States is impaired and precludes automatic citizenship. The proper interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
In the “Slaughter-House Cases” the Supreme Court confirmed this restricted interpretation of citizenship. In 1884 Elk v. Wilkins, the phrase, “subject to its jurisdiction” was interpreted to include “children of ministers, consuls, and citizens of foreign states born with the United States.” In Elk, the American Indian claimant was considered NOT an American citizen because the law required him to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” The Courts essentially declared that the status of the parents determines the citizenship of the child. To qualify children for “birthright citizenship”, based on the 14th Amendment, parents MUST owe, “direct and immediate allegiance” to the United States and be “completely subject” to its jurisdiction. Simply, they must be citizens of the United States of America.
The argument that simply being born here automatically affords “birthright citizenship” in the United States is to ignore the wording and intent of the Amendment. One cannot simply self-immigrate ILLEGALLY and then claim jurisdiction because they are here. They are citizens of another country and subject to the jurisdiction of that country. They become subject to our laws but that does not give them citizenship.
The 14th Amendment ratified in 1868 was primarily directed at extending citizenship to the freed slaves. The Amendment’s wording was derived from the 1866 Civil Rights Act, which provided that “all person born in the United States, and not subject to any foreign power” should be considered citizens. The Amendment was intended to give citizenship ONLY to those who owed their allegiance to the United States and were subject to its complete jurisdiction. Senator Lyman Trumbull, R-IL, a key figure in its adoption stated, “subject to the jurisdiction” meant not owing allegiance to any other country.
American Indians did not become citizens UNTIL Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to all people born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents. I pray that everyone, including the Supreme Court Justices, considers that fact and realize based on the wording and the declarations of the framers the original intent. Birthright Citizenship is not part of our Constitution, politicians have made it so not the document itself.
The Civil Rights Act of 1866 defined citizens of the United States as, “all persons born in the United States and not subject to any foreign power, excluding American Indians not taxed.” The question of American Indians Senator Howard argued, “…have always been in our legislation and jurisprudence, as quasi-foreign nations”. Senator Lyman Trumbull (D-IL) agreed with Senator Howard stating, “…it would be a violation of our treaty obligations… to extend our laws over these Indian tribes with whom we have treaties saying we would not do so.” Trumbull insisted that the Indian tribes WERE NOT subject to our jurisdiction in the sense of owing allegiance solely to the United States. He stated, “…it is ONLY those persons who come completely within our jurisdiction, who are subject to our laws that we think of making citizens.”
The clincher in this is that in Section 5 of the 14th Amendment it reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” That includes Section 1 deemed the “citizenship clause”. Would a liberal Congress pass legislation granting “birthright citizenship” to the children of illegal aliens? Do wild bears live in the woods? The Liberal Leftist Democrats most assuredly would and now insist on it as well as Open Borders for one and all. However, if they follow the arguments of the authors of the clauses and amendment they would not but if they follow present-day political correctness they would. What do you think would be the case if the Democrats and RINO’s control of Congress and/or the White House in 2020? You get the Gold Star it would be Amnesty and Anchor Baby Citizenship automatically. If Congress passes such a law and it is enacted, so be it but until then, it is not Constitutional.
May God bless you and God bless America again!