President Donald Trump’s promise to end birthright citizenship through executive order has sparked immense criticism from both ends of the political spectrum. The criticism always centers over the constitutionality of birthright citizenship, as the 14th Amendment is used to justify it. The Amendment reads (in part) “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In full the amendment is the longest in the Constitution, with 425 words and four sections, though its the first anyone ever focusses on.
As refreshing as it is to see liberals at least pretending to care about the constitution, their concerns, and those of my fellow conservatives, are unfounded.
Is Birthright Citizenship a Misinterpretation of the 14th?
The historical context of the 14th Amendment wasn’t to give illegals the luxury of having their offspring be American citizens if they happened to give birth on American soil (after all, what would be the point of that?), it was to ensure the citizenship of the children of freed slaves. There was no illegal immigration epidemic in 1866 (or much of a concept of “illegal immigration), the time the Amendment was ratified. The 13th, 14th, and 15th amendments are known as the “reconstruction amendments,” as they were passed immediately following the civil war to “reconstruct” a nation previously divided by slavery.
That’s the historical context in which the 14th needs to be interpreted
The 14th Amendment’s citizenship clause was authored by Michigan Senator Jacob Howard, who clarified its meeting on the floor of the Senate in 1866:
This [Amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
It must be noted however that critics charge that Howard’s comment is still open to interpretation. Is he speaking of three distinct groups (foreigners, aliens, and the children of ambassadors/foreign minorities) or one group (the foreign/alien children of ambassadors/foreign ministers)? Unfortunately, this isn’t the sort of thing that can be resolved by a debate over 19th-century grammar. Still, it does seem redundant that Howard would even mention “foreigners” and “aliens” in the first half of his sentence if he was simply speaking of the children of foreigners.
Owing credibility to the argument that the Amendment was more to help freed blacks, Howard said before the Senate that “This amendment which I have offered is simply declaratory of what I regard as the law of the land already.” Howard was referencing the 1866 Civil Rights Act, passed fewer than two months earlier. Regarding citizenship, the Civil Rights Act declared 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.”
19th Century Legal Interpretations of the 14th Amendment
The legal scholars of the 19th century have a radically different interpretation of the 14th Amendment than the Washington Post bloggers of the 21st.
Just five years after the Amendment was ratified, the U.S. Attorney General George Williams explained in a legal case that the term “jurisdiction” in the 14th meant “absolute and complete jurisdiction” excluding aliens, even those born on American soil. The clause also excluded Native Americans. He said, in full, that:
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.
And as my friend Will Ricciardella noted, the late scholar Judge Thomas Cooley wrote in his 1880 treatise The General Principles of Constitutional Law in America: “[A] citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”
Ricciardella further notes that:
It wasn’t until 1898 in United States v. Wong Kim Ark, that the “separate but equal” court, held that any child born in the U.S. of legal immigrant parents with “permanent” residence in the United States are guaranteed citizenship under the 14th Amendment. A narrow exception would be for children of diplomats.
There is zero precedent for allowing citizenship to children born to illegal alien parents. Article 1, section 8, clause 4 gives plenary power to Congress over naturalization and Section 5 of the 14th Amendment over jurisdiction, which Congress altered to allow Indians born in the United States to become citizens in 1924.
The history is clear – the 14th Amendment does not support birthright citizenship. Much like Peter Gibbons, liberals appear to have not gotten the memo.