In recent weeks President Trump has proposed using executive power to end birthright citizenship for children of illegal immigrants. As expected, Democrats immediately decried President Trump, saying that his proposition was not only unconstitutional but shows his disregard for the rule of law.
The 14thAmendment does not guarantee birthright citizenship to children of illegal immigrants.
The 14thAmendment is as follows:
"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"
While at first glance it might seem obvious that the 14thAmendment guarantees birthright citizenship, it turns out to be an interpretation that I personally find to be incorrect.
The 14thAmendment was written during the Reconstruction period and was meant to guarantee the rights of newly freed slaves whose rights were being denied. The 14thAmendment was meant to prevent the government from denying citizenship to blacks born in the United States.
When the 14thAmendment was written, illegal immigration was not an issue in the United States-therefore, how could the 14thAmendment be interpreted to mean that children of illegal aliens automatically get citizenship if the creators of this amendment did not even have this issue?
The basis for this interpretation stems from the Immigration and Nationality Act of 1965, which, amongst other things, aimed to bring in more skilled workers and reunite immigrant families, thus giving rise to the idea of 'anchor babies'.
Senator Jacob Howard, who drafted the amendment, gave a speech in which he explicitly states that the amendment was NOT written to give citizenship to "persons born in the United States who are foreigners [or] aliens". With this, it can be argued that persons born in the United States that are foreigners or aliens transcend legal/illegal. Howard makes it explicitly clear that the amendment was not meant to guarantee birthright citizenship to those not under the jurisdiction of the United States.
But what does "jurisdiction" mean?
It most likely does NOT mean 'geography', making the claim that a 'person born within the boundaries of the United States is a citizen' null and void. Edward Cowan raised this question when the amendment was being drafted, saying that "it is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power." Lyman Trumbull, while discussing the provisions of the 14thamendment, regarding Native Americans (known in this context as "Indians"), says the following:
"The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means."
Therefore, it reasonable to argue that the term 'jurisdiction' does not refer to our borders, but rather the jurisdiction, in the case of anchor babies, that their parents are subject to in terms of political allegiance. Therefore, in the case of illegal immigrants, their jurisdiction is subject to that of their native country and consequently, their children are subject to same.
This was affirmed in Elk v Wilkins in 1884. The term 'jurisdiction' was interpreted to exclude those born in the United States but citizens of a foreign state. In the case, John Elk, a Native-American, was denied the right to vote because the court decided that he was not a citizen for he did not owe complete allegiance to the United States since he owed allegiance to his tribe when he was born. Thus, 'anchor babies' would consequently not be granted citizenship for their allegiance is claimed by their native country where their parents are citizens.
We again reaffirm that the status of the parents is essential in determining the citizenship of the child in the 1898 United States v. Wong Kim ArkSupreme Court case. Wong Kim Ark was born to Chinese parents who were legally residing in the United States. The court ruled that a child born to parents legally residing in the United States was automatically a citizen.
This is vital to the current interpretation of the 14thAmendment.
The Supreme Court's decision only ruled on the citizenship of children of legal parents. Therefore, those who claim that this case affirms their interpretation of the 14thamendment clearly misread the case. The Supreme Court has NEVER ruled regarding children of illegal immigrants.
Based on the aforementioned, I think it is fair to argue that the 14thAmendment was never meant to grant birthright citizenship to children born to illegal immigrants.
And think logically for a second, why in the world would the creators of this amendment intend to allow children of illegal persons automatically citizens?
