Should children born in the US—even if their parents are foreign nationals who entered this country illegally—automatically become citizens? A concept termed “birthright citizenship” many people erroneously think is dictated by the Constitution or enshrined in a Supreme Court decision. Not so. Section 1 of the 14th Amendment—the Citizenship Clause—states that “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.” The origins of this language are a bit hazy, butrecall that the purpose of the 14th Amendment was to correct the infamous Dred Scott v. Sandford decision (1857) and recognize citizenship for the newly freed slaves (but not members of Indian tribes living on reservations). The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators who framed the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed….” Foreign nationals resident in the US, and children who become citizens of a foreign country at birth (by virtue of their parents’ citizenship) would obviously be excluded from this definition.
Granted, the language of the Citizenship Clause deviates slightly from that of the Civil Rights Act of 1866, but there is no compelling evidence that Congress intended a different meaning. In fact, the sponsor of the Citizenship Clause, Senator Jacob Howard, stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers…..” The record of the debate in 1866 is illuminating. When Senator Lyman Trumbell, Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment), was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” Only U.S. citizens owe “complete allegiance” to the US. Everyone present in the US is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted or prosecuted for treason if they take up arms against the US.
Senator Howard agreed with Trumbell’s explanation: “I concur entirely with the honorable Senator from Illinois [Trumbell], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, …; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the US to foreign nationals (i.e., resident aliens). Even Ilya Shapiro, pro-immigration, concedes that “the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants.”
Parsing the entire debates over the Citizenship Clause in the 39th Congress admittedly presents some occasional inconsistencies and ambiguities, leading reasonable people—on both the Left and Right—to disagree about the meaning of the Citizenship Clause. John Eastman, Lino Graglia, Edward Erler, and even former Attorney General Edwin Meese, have advocated in opposition to birthright citizenship. Notably, this point of view is shared by liberal scholars such as Peter Schuck, who with U. of Pennsylvania political scientist Rogers Smith, make the same argument. Federal Judge/legal scholar Richard Posner has called the current practice of birthright citizenship “an anomaly” that “makes no sense.” Posner went on to state (in a published decision, Oforji v. Ashcroft, 354 F. 3d 609 (7th Cir. 2003)) that “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” Posner doubted whether a constitutional amendment was necessary to change the current practice of birthright citizenship. A considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship.
CONTINUED...
Supplemental Info:
https://www.americanthinker.co....m/articles/2024/12/b
