Posted on 11/01/2018 7:04:25 AM PDT by SeekAndFind
KEY TAKEAWAYS
1. Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.
2. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
3. Birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.
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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.
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I’m a first generation American whose foreign national parents were legal immigrants when I was born. Do I get to stay?
The illegal immigrant has access to the embassy of the country from which he came. Thus US does not have jurisdiction.
If true, that “birthright Citizenship” has been accomplished by Executive Fiat, then it CAN be undone the same way.
RE: I’m a first generation American whose foreign national parents were legal immigrants when I was born.
The Wong Kim Ark Supreme Court decision of 1898 already answered that question. Since your parents WERE LEGAL ( emphasis ) residents, you ARE American by birth.
This is a sensible question... At what generation with your offspring does it finally apply? If ever?
Has President Trump’s State Department STOPPED issuing passports to anchor babies of illegal aliens, tourists, and others? I wish we could say Yes. When will he do so?
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Obviously, the wrong occupant of Ted Kennedy’s car drowned!
Yes, because they are LEGAL immigrants.
I think what POTUS Trump will do is issue an Executive Order to enforce his opinion the the 14th already says children of illegals are not citizens due to the “jurisdiction of” clause. The lefties will file a lawsuit to block enforcement. A lefty judge will oblige. Appeals will follow. Hello, SCOTUS. By the time it gets that far, Ruth Buzzi Ginsberg will be room temperature, and POTUS Trump will have his 3rd Justice confirmed.
Such a shame. Too bad that girl had to die and that drunk managed to survive.
The most effective way of stopping anchor babies is to make sure pregnant illegals don’t get into the US.
Birthright Citizenship: A Purposeful Misunderstanding of the 14th Amendment
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Another aspect of the language of the 14th amendment is that if the ‘birthright’ proponents are correct, it means everything after the “and” in the amendment is superfluous. I can’t recall specifically what the legal term for it is, but the Supreme Court has ruled in the past that nothing in the Constitution is superfluous unless it has specifically been rendered moot by subsequent amendment.
WHAT YOU SAID.
It’s something else entirely to claim that an illegal alien, subject to deportation, can drop a baby and suddenly claim to be the parent of a “citizen.”This crackpot notion was concocted by liberal zealot Justice William Brennan and slipped into a footnote as dicta in a 1982 case. “Dicta” means it was not the ruling of the court, just a random aside, with zero legal significance.
Anne Coulter
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