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The Daily Signal
Birthright
Citizenship: A Fundamental Misunderstanding of the 14th Amendment
Hans von Spakovsky
October 30, 2018
What’s the citizenship status of the children of illegal aliens? That
question has spurred quite a debate over the 14th Amendment lately,
with the news that several states—including Pennsylvania, Arizona,
Oklahoma, Georgia, and South Carolina—may launch efforts to deny
automatic citizenship to such children.
Critics claim that anyone born in the United States is automatically a
U.S. citizen, even if their parents are here illegally. But that
ignores the text and legislative history of the 14th Amendment, which
was ratified in 1868 to extend citizenship to freed slaves and their
children.
The 14th Amendment doesn’t say that all persons born in the U.S. are
citizens. It says that “[a]ll persons born or naturalized in the United
States and subject to the jurisdiction thereof” are citizens. That
second, critical, conditional phrase is conveniently ignored or
misinterpreted by advocates of “birthright” citizenship.
Critics erroneously believe that anyone present in the United States
has “subjected” himself “to the jurisdiction” of the United States,
which would extend citizenship to the children of tourists, diplomats,
and illegal aliens alike.
But that is not what that qualifying phrase means. Its original meaning
refers to the political allegiance of an individual and the
jurisdiction that a foreign government has over that individual.
The fact that a tourist or illegal alien is subject to our laws and our
courts if they violate our laws does not place them within the
political “jurisdiction” of the United States as that phrase was
defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act,
which provided that “[a]ll persons born in the United States, and not
subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th
Amendment, said that “subject to the jurisdiction” of the U.S. included
not owing allegiance to any other country.
As John Eastman, former dean of the Chapman School of Law, has said,
many do not seem to understand “the distinction between partial,
territorial jurisdiction, which subjects all who are present within the
territory of a sovereign to the jurisdiction of that sovereign’s laws,
and complete political jurisdiction, which requires allegiance to the
sovereign as well.”
In the famous Slaughter-House cases of 1872, the Supreme Court stated
that this qualifying phrase was intended to exclude “children of
ministers, consuls, and citizens or subjects of foreign States born
within the United States.” This was confirmed in 1884 in another case,
Elk vs. Wilkins, when citizenship was denied to an American Indian
because he “owed immediate allegiance to” his tribe and not the United
States.
American Indians and their children 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 every person born in America, no matter what the
circumstances of their birth, and no matter who their parents are.
Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by
“birthright” supporters due to its overbroad language, the court only
held that a child born of lawful, permanent residents was a U.S.
citizen. That is a far cry from saying that a child born of individuals
who are here illegally must be considered a U.S. citizen.
Of course, the judges in that case were strongly influenced by the fact
that there were discriminatory laws in place at that time that
restricted Chinese immigration, a situation that does not exist today.
The court’s interpretation of the 14th Amendment as extending to the
children of legal, noncitizens was incorrect, according to the text and
legislative history of the amendment. But even under that holding,
citizenship was not extended to the children of illegal aliens—only
permanent, legal residents.
It is just plain wrong to claim that the children born of parents
temporarily in the country as students or tourists are automatically
U.S. citizens: They do not meet the 14th Amendment’s jurisdictional
allegiance obligations. They are, in fact, subject to the political
jurisdiction (and allegiance) of the country of their parents. The same
applies to the children of illegal aliens because children born in the
United States to foreign citizens are citizens of their parents’ home
country.
Federal law offers them no help either. U.S. immigration law (8 U.S.C.
§ 1401) simply repeats the language of the 14th Amendment, including
the phrase “subject to the jurisdiction thereof.”
The State Department has erroneously interpreted that statute to
provide passports to anyone born in the United States, regardless of
whether their parents are here illegally and regardless of whether the
applicant meets the requirement of being “subject to the jurisdiction”
of the U.S. Accordingly, birthright citizenship has been implemented by
executive fiat, not because it is required by federal law or the
Constitution.
We are only one of a very small number of countries that provides
birthright citizenship, and we do so based not upon the requirements of
federal law or the Constitution, but based upon an erroneous executive
interpretation. Congress should clarify the law according to the
original meaning of the 14th Amendment and reverse this practice.
Originally published by Fox News in 2011
Read this and other articles at The Daily Signal
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