Ending Birthright Citizenship
History, as the saying goes, is a lie agreed upon, and there has perhaps been no bigger lie detrimental to the future national security and economic well-being of the United States that the 14th Amendment, clearly written to protect the rights of African-American slaves liberated by the first Republican President of the United States, Abraham Lincoln, somehow confers citizenship on the offspring of anybody whose pregnant and can sneak past the U.S. Border Patrol.
U.S. citizenship is rendered meaningless if it is defined as an accident of geography and it is the clear that this was not the intention authors of those who wrote the 14th Amendment and shepherded it into the Constitution. President Trump has rightly targeted birthright citizenship as an historical error that needs to be corrected:
President Trump said in a newly released interview he plans to sign an executive order ending so-called "birthright citizenship" for babies of non-citizens born on U.S. soil -- a move that would mark a major overhaul of immigration policy and trigger an almost-certain legal battle…
Michael Anton, a former national security adviser for Trump, pointed out in July that "there’s a clause in the middle of the amendment that people ignore or they misinterpret – subject to the jurisdiction thereof.”
"What they are saying is, if you are born on U.S. soil subject to the jurisdiction of the United States – meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship,” Anton told Fox News’ Tucker Carlson in July. “If you are here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.”
Anton is stunningly correct and clearly echoes the sentiments and legislative intent of the authors of the 14th Amendment. The only question is whether this historical error is better corrected though a clarifying amendment, legislation, or through a Trump executive order. GOP Rep. Steve King, R-IA, has proposed legislation:
In January of this year, Rep. Steve King (R-Iowa) proposed the Birthright Citizenship Act of 2015 (HR 140) that seeks to amend current law by making requirements for citizenship more narrow, and, in King’s opinion, more constitutional…
“A Century ago it didn’t matter very much that a practice began that has now grown into a birthright citizenship, an anchor baby agenda,” King said. “When they started granting automatic citizenship on all babies born in the United States they missed the clause in the 14th Amendment that says, ‘And subject to the jurisdiction thereof.’ So once the practice began, it grew out of proportion and today between 340,000 and 750,000 babies are born in America each year that get automatic citizenship even though both parents are illegal immigrants. That has got to stop.”…
King’s bill seeks to amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. The bill states that a person born in the United States is a citizen if one parent is “(1) a citizen or national of the United States, (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien performing active service in the armed forces.”
But some would argue that no clarifying legislation is necessary and that as a result of President Trump’s appointment of originalist interpreters of the Constitution to the Supreme Court, the original intent of the 14th Amendment can be restored.
The Supreme Court has never said birthright citizenship is constitutional and legal scholars have noted that supporters of birthright citizenship, a gross misinterpretation of the 14th Amendment, ignore the intentions of those who wrote it.
Peter H. Schuck, Yale University’s Simeon E. Baldwin Professor of Law Emeritus and self-described “militant moderate,” reiterated his opinion Monday that birthright citizenship is not required by the U.S. Constitution. Though opposed to many of the president’s positions, he was surprised the administration has not made opposition to citizenship for the children of illegal aliens more central to its immigration policy…
On at least one key immigration stance, however, Schuck appears to be in agreement with President Trump. In the 1990s, along with Yale Political Scientist Rogers Smith, he determined, in a book called Citizenship Without Consent, that the policy of granting citizenship to everyone born on American soil, including so-called “anchor-babies” -- those born to illegal aliens -- was not mandated by the Fourteenth Amendment to the U.S. Constitution as is popularly trumpeted by open-borders supporters. Trump came to the same conclusion on the campaign trail, once stating, “We’re the only ones dumb enough, stupid enough to have it.”
This misinterpretation of the 14th Amendment, written to guarantee the citizenship rights of freed slaves after the Civil War, has morphed the amendment into a guarantee of birthright citizenship. Merely being born on American soil is said to make you a U.S. citizen. Sneak past the U.S. Border Patrol, have your baby, and you not only have a U.S. citizen but what is called an “anchor baby” allowing you to stay and bring others in under the banner of family reunification.
Trump during the campaign correctly called the flawed concept of birthright citizenship the “biggest magnet” for illegal immigration. He would end it and as for family reunification, Trump is all for it, just saying it should happen on the other side of the U.S.-Mexico border. As The New York Post reported:
Trump described his expanded vision of how to secure American borders during a wide-ranging interview Sunday on NBC’s “Meet The Press,” and in a position paper he later released, saying that he would push to end the constitutionally protected citizenship rights of children of any family living illegally inside the US.
“They have to go,” Trump said. “What they’re doing, they’re having a baby. And then all of a sudden, nobody knows... the baby’s here.”
Birthright citizenship is the exception and not the rule worldwide. Even our European brethren, as fond as they are of refugees and open borders, do not embrace it. As Liz Peek writes on FoxNews.com, birthright citizenship is indeed a big magnet for illegal immigration:
The United States is one of only two developed countries in the world that still bestows citizenship on every person born on our nation’s soil. Having a child become a U.S. citizen is the greatest reward possible for someone who enters the country illegally. Such status is worth hundreds of thousands of dollars in free education and benefits, not to mention the incalculable value of our country’s security and freedoms. Historically, there was bipartisan enthusiasm for dumping this program; even Democrat Harry Reid had proposed its termination.
The costs of birthright citizenship are staggering, especially when you consider the costs of what is called “chain migration”. Once of age the baby born here can sponsor others. It has even given rise to what is called “birth tourism” where pregnant women are brought to the United States, ostensibly as tourists, to give birth here and have their child dubbed an American citizen by birth.
Critics have said that the task, even if justified, is well nigh impossible, requiring amending the U.S. Constitution. In reality, it may not require altering the 14th Amendment -- only correctly interpreting it -- perhaps through clarifying legislation.
The 14th Amendment, passed, on July 3, 1866, reads, “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.” This was done, again, to guarantee the citizenship rights of freed slaves, not illegal aliens. The 1857 Dred Scott decision had held that no black, not even a freed black, could be considered a citizen.
In testimony before the House Judiciary Committee in October, 2008, John C. Eastman, a law professor at Chapman University and a fellow at the Claremont Institute, argued that illegal aliens are still foreign nationals and are not subject to U.S. jurisdiction, except for purposes of deportation, and therefore their children born on American soil should not be automatically considered U.S. citizens:
John Eastman of the Claremont Institute testified before the subcommittee, saying, the Supreme Court has never actually held that anyone who happens to make it to U.S. soil can unilaterally bestow citizenship on their children merely by giving birth here.
Although such an understanding of the Fourteenth Amendment has become widespread in recent years, it is not the understanding of those who drafted the Fourteenth Amendment, or of those who ratified it, or of the leading constitutional commentators of the time. Neither was it the understanding of the Supreme Court when the Court first considered the matter in 1872, or when it considered the matter a second time a decade later in 1884, or even when it considered the matter a third time fifteen years after that in the decision many erroneously view as interpreting the Fourteenth Amendment to mandate automatic citizenship for anyone and everyone born on U.S. soil, whether their parents were here permanently or only temporarily, legally or illegally, or might even be here as enemy combatants seeking to commit acts of terrorism against the United States and its citizens.
Eastman argues that the modern view of the Fourteenth Amendment ignores a key phrase in the Citizenship Clause. Mere birth on U.S. soil just isn’t enough. “A person must be both ‘born or naturalized in the United States’ and ‘subject to its jurisdiction.’"
During debate on the 14th Amendment, Sen. Jacob Merritt Howard of Michigan added jurisdiction language specifically to avoid accident of birth being the sole criteria for citizenship. And if citizenship was determined just by place of birth, why did it take an act of Congress in 1922 to give American Indians birthright citizenship, if they already had citizenship by birthright under the 14th Amendment?
Rep. John Bingham of Ohio, who is regarded as the father of the 14th Amendment, said it meant that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your constitution itself, a natural born citizen…”
Rep. Nathan Deal of Georgia sought to clarify the situation through HR. 698 the Citizenship Reform Act of 2005, which would have amended the Immigration and Nationality Act to deny automatic citizenship to children born of the United States of parents who are not U.S. citizens or are not permanent resident aliens.
HR. 698 declared: "It is the purpose of this Act to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens." The bill undertook to clarify "subject to the jurisdiction of the United States" to the meaning originally intended by Congress in the14th Amendment.
The current interpretation of birthright citizenship may in fact have been a huge mistake and given the burden illegal aliens have imposed on our welfare, educational, and health care systems as well as through increased crime on our legal system, a very costly one.
There may be hope of correctly interpreting the 14th Amendment through a court case as President Trump reshapes the courts, particularly the Supreme Court, with justices of a more “originalist” bent. As noted, the misinterpretation could be corrected through clarifying legislation. We can correct it judicially or legislatively and we should. Donald Trump was right -- becoming a U.S. citizen should require more than your mother successfully sneaking past the Border Patrol.
Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.