Birthright Citizenship and the Fourteenth Amendment

On the Washington Post’s online editorial page on August 18, 2015, there were opinion pieces with the following titles:

Birthright citizenship was one of the Republican Party’s greatest accomplishments. Now some Republicans want to end it.


Did Republicans just give away the 2016 election by raising birthright citizenship?


Donald Trump and Scott Walker want to repeal birthright citizenship. It’s nearly impossible.


The articles make the point that in order for those in the Republican Party to end automatic citizenship to children born to those in the United States illegally, the country must amend the Constitution.  Specifically, the writers claim, we would have to repeal a portion of the Fourteenth Amendment.

The country adopted the Fourteenth Amendment to address the various loose ends that remained unresolved as a result of the Civil War.  Among them were to invalidate any monetary claim due to the loss of a federally emancipated slave; the handling of any Confederate public official who had once, as federal public office holder, taken the oath to support the U.S. Constitution; and applying the Bill of Rights to the states.

The primary reason the U.S. adopted the Fourteenth Amendment was to settle the legal status of those who had been slaves.  Congress decided that those had been recently freed would be full citizens of the United States.

The following is the first sentence of the Fourteenth Amendment.

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.

Without referring to the former slaves directly, those recently freed would become citizens simply because they were born on U.S. soil.

Most Americans have come to believe that as long as one is born in the United States, that individual is a citizen of the country.  This belief, however, is incorrect.

If the modern day Republican Party wanted to restrict who becomes a citizen by virtue of being born on U.S. soil, they are too late; Republicans in the 1860s, in the wake of the Civil War, beat them to it.

The often ignored phrase in the Fourteenth Amendment is the “and subject to the jurisdiction thereof” subclause.  There are two conditions to get birthright citizenship.  First, the person born must be born on U.S. soil.  Second, the person must be subject to the jurisdiction of United States.

The following is part of the first sentence of the Civil Rights Act of 1866.

. . . That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States

The wording in the 1866 Act is similar to the first sentence of the Fourteenth Amendment.  Republicans in Congress were concerned that a future Congress controlled by Democrats would repeal the Act.  This, in large part, was the reason to propose the amendment: to permanently enshrine it in the Constitution.

Subject to the jurisdiction thereof or subject to the jurisdiction of the United States means not subject to any foreign power; there cannot be any allegiance to any other country.  A newborn baby is not in any position to have any allegiance to any nation.  Allegiance, therefore, is determined by the legal status of the newborn’s parents and is imputed to the child.  If a foreign ambassador stationed in the U.S. has a child born on American soil, the citizenship of the child is the same as the citizenship of the ambassador.  Prior to a federal law passed in 1924, American Indians belonging to tribal nations were not citizens of this country even though most were born on American soil.

It is clear that Congress authored the Citizenship Clause of the Fourteenth Amendment in such a way to exclude classes of people from automatic birthright citizenship.  The intent was to include the former slaves, and blacks generally, under the umbrella of U.S. citizenship, which overturned the 1857 Dred Scott v. Sandford decision that said blacks — whether slave or free — could never be citizens of the United States.

There is no reason to believe that those born to foreigner, who would sneak into the country in violation of our laws, would be eligible to for birthright citizenship.  How is it possible for a citizen to be raised by someone living in hiding (or living in the shadows as amnesty sympathizers phrase it)?  Logically, it makes no sense that a citizen would be raised by parents who could legally be deported.  Those who enter the U.S. unlawfully are not subject to the jurisdiction of the United States.  Even if those who migrate to the U.S. illegally feel more loyalty to this country than to their own, allegiance is a two-way street.  The United States must also pledge allegiance to its citizens in order for the phrase subject to the jurisdiction thereof to have any meaning.  A young man cannot become a New York Yankee by simply jumping the fence during spring training and putting on a uniform; the team must extend an invitation to join.  Someone cannot join into marital union with another without at least implied consent of the other (think how many men would have claimed to be Marilyn Monroe’s husband during the 1950s).

Unfortunately, the practice has been to confer citizenship to anyone (other than children of foreign ambassadors) born on U.S. soil.  Most Americans, including public officials, unwittingly accept the notion that if one is born here, one is automatically a citizen.  This is applied to not only those born in the country illegally but even those here temporarily.  For example, a seven-months-pregnant Canadian woman visiting the U.S. for a weekend to go to a relative’s wedding in Vermont.  If she gives birth prematurely while here, her child is, unconstitutionally, considered to be a U.S. citizen.

This was not the purpose of the Fourteenth Amendment Citizenship Clause.

As a political matter, Republicans running for high office should explain to the public how this Citizenship Clause of the Fourteenth Amendment was supposed to work, even if some in their party disagree.  The clause is not intended to be unkind or ungenerous.  It is not intended to be anti-immigrant.  It is not intended to be anti-Hispanic.  Democrats claim the opposite because it benefits them electorally.

Republicans today cannot be timid.  The public will understand if responsible politicians articulate in plain language why the Citizenship Clause does not cover so-called “anchor babies” or babies born here unintentionally.  Republican politicians will have to perform this task because, unfortunately, we cannot rely on those in the media to expose this misuse of the Fourteenth Amendment.

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