How the Fourteenth Amendment Empowers Congress to End Birthright Citizenship

If an illegal alien has a child on American soil, the Constitution does not require the child be granted American citizenship. Congress can give citizenship to anyone it wants, but the Fourteenth Amendment only commands citizenship to persons born on U.S. soil to parents who are not citizens of a foreign country.

Part of the chaos on America’s southern border is driven by illegal aliens seeking to have “anchor babies.” Under the current Immigration and Nationality Act (INA), if an illegal alien has a baby on U.S. soil, that baby is an American citizen.

Since all citizens have a right to be here, the illegal adult then cites the need to keep families together as justifying the parents' staying in the U.S. for the rest of their lives, and “family reunification” is cited as grounds for bringing the rest of the family to the United States.

However, Congress could change that law any time, because it goes far beyond what the Constitution commands. Section One of the Fourteenth Amendment begins, “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 many erroneously claim that the Fourteenth Amendment guarantees citizenship to anyone born on American soil, the reality is that is not the law and has never been the law. Current immigration law—found at 8 U.S.C. § 1401(a)—specifies that a baby born on American soil to (1) a foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

But if the view promoted by the Left that citizenship is automatic (and parroted by many in the middle and even on the Right who have not seriously studied the issue) is correct, then those three exceptions would be unconstitutional. The debate over birthright citizenship turns on what the Citizenship Clause means by the words “and subject to the jurisdiction thereof.”

Every provision of the Constitution has a fixed meaning. Because only “We the People” can adopt a constitutional provision—all 27 amendments in the Constitution were proposed by two-thirds of the House and Senate, then ratified by three-fourths of the states—the only legitimate way to interpret the Constitution is in accordance with the original meaning of those terms.

So the question becomes: What was the meaning of the Jurisdiction Clause in 1868 when the Fourteenth Amendment was ratified? One of the best tools for determining that is looking at the Civil Rights Act of 1866, enacted the same year that the Fourteenth Amendment was written by Congress.

As anyone who has seen the award-winning (and historically accurate) movie Lincoln understands, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and unwavering resolve of Republican President Abraham Lincoln that the Great Emancipator succeeded in getting the proposed amendment through Congress and to the states for ratification.

As my coauthor Ken Blackwell and I explain in more detail in our 2011 book Resurgent, the Civil Rights Act was first enacted by citing Section Two of the Thirteenth Amendment, which authorized Congress to implement the amendment through appropriate legislation.

The Civil Rights Act included a provision to define American citizenship to secure it for former slaves. It read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

But some supporters of racial equality were concerned that the Thirteenth Amendment didn’t authorize legislation that went beyond eliminating various aspects of slavery and even voted against the bill because they regarded it as unconstitutional. Led by one of the best constitutional lawyers in Congress, Rep. John Bingham (R-OH), they wrote what would be ratified in 1868 as the Fourteenth Amendment to the Constitution, including the Citizenship Clause and its Jurisdiction Clause.

The movie Lincoln vividly portrays the political environment in 1865, illustrating why more expansive language—such as for citizenship, due process, equal protection, or voting rights—would have doomed the Thirteenth Amendment. All those had to wait for the Fourteenth and Fifteenth Amendments.

Conventional wisdom says that the Fourteenth Amendment’s “subject to the jurisdiction thereof” excludes from citizenship those who have diplomatic immunity or who are agents of a foreign country, explaining the three exemptions in federal law (ambassadors, heads of state, and foreign soldiers).

But the Civil Rights Act’s parallel language, “and not subject to any foreign power,” instead shows the Jurisdiction Clause excludes all citizens of any foreign country. The Citizenship Clause was intended to overrule the most infamous Supreme Court case in American history—the 1857 Dred Scott case—and ensure free blacks born in America could not be denied citizenship. It was never designed to make a citizen of every child born to a foreigner.

The Supreme Court expressly took note of this originating language of the Civil Rights Act in the 1884 case Elk v. Wilkins. The Court acknowledged that Section One of the Fourteenth Amendment was condensed and rephrased from the Civil Rights Act and therefore that courts can look to that federal statute to resolve ambiguities in the meaning of the Fourteenth Amendment.

This came up again in the 1898 case U.S. v. Wong Kim Ark, when the federal government attempted to deny permanent residence to an American citizen born to two Chinese noncitizens. The Supreme Court held that the Citizenship Clause guaranteed citizenship for “all children here born of resident aliens.”

While that decision is incorrect in light of the Civil Rights Act, even Wong Kim Ark nonetheless would not secure citizenship for the children of illegal aliens. The only Supreme Court support for birthright citizenship is Plyler v. Doe, a 5-to-4 Supreme Court decision written by ultra-liberal Justice William Brennan, which claimed that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

In that case, the Supreme Court held that states were required to pay for the public school education of children of illegal aliens. Conservative and moderate justices dissented from Plyler. It was wrongly decided and poorly reasoned and should be overruled.  

While some conservative lawyers believe the Fourteenth Amendment requires birthright citizenship, many conservative giants like Ronald Reagan’s Attorney General Ed Meese support the originalist interpretation of the Jurisdiction Clause part of the Citizenship Clause. Leading conservative scholars like Professor John Eastman—a former law clerk to Justice Clarence Thomas—agree.

Even some who flatly reject conservatism agree. One example is Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Although a Reagan appointee, Posner’s hallmark is making decisions in accordance with what he regards as producing good public policy outcomes, rather than strictly following the clear meaning of the words in the law.

On this topic, Posner wrote in 2003 in Ofoji v. Ashcroft:

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. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship…

A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…

The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.

If a constitutional conservative Republican wins the White House, and Republicans control both the House and Senate, then as part of finally dealing with immigration Congress could enact this change.

First must be a statute that effectively secures the border. A second statute should address citizenship. Then a third could be a statute creating a broad and generous guest-worker program.

Each bill would save the United States billions of dollars per year. Consequently, each could be passed in the Senate through what is called “reconciliation,” and therefore could not be filibustered and instead passed with 51 votes. With 218 House members, 50 senators (plus the vice president), and a willing president, all this could become law in 2017.

Congress could specify that children of illegal aliens are not citizens or could go more broadly to include some or all legal temporary residents. It would certainly help garner conservative votes for follow-up legislation for a broad guest worker program if federal law specified that any children born to those guest workers would not be citizens and thus not anchor babies.

Such a law would provoke a lawsuit from parents of a child who does not receive citizenship due to the new law. It is not certain how the Supreme Court would rule on this question today, especially since it may require overruling Plyler. But there is a good chance it would succeed, and given how far out of control the border is, many would argue we must try everything possible.  

Ken Klukowski is senior legal analyst for Breitbart News and coauthor of Resurgent: How Constitutional Conservatism Can Save America (Simon & Schuster 2011). Follow him on Twitter @kenklukowski.


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