Levin: ‘There’s No Such Thing as Birthright Citizenship for the Children of Illegal Aliens’

During his Sunday show’s opening monologue, Fox News Channel’s “Life, Liberty & Levin” host Mark Levin argued that the 14th Amendment was not intended to give birthright citizenship to children of illegal immigrants.

Transcript as follows:

LEVIN: You know, ladies and gentlemen, this is my pocket copy of the U.S. Constitution and the Declaration of Independence. Now, in the last half century, I’ve probably read this a thousand times. I’ve looked around it, those who wrote it, the history at the time, what they meant, depending on which words, which phrase, which section, which clause we’re dealing with and I went back and I took a look earlier today, and I cannot find this phrase, “birthright citizenship.” I have looked everywhere.

I’ve looked in the penumbras and emanations, and I can’t find it. I’ve looked at the invisible ink, I can’t find it, birthright citizenship. And yet, last week, there was a big argument in front of the Supreme Court, and the justices, a couple of them were really wise, but most of them were like kind of strange getting into policy and politics and quirky examples and things of that sort.

So, I thought I’d bring us back down to Earth and deal with this, because sometimes lawyers, particularly lawyers in black robes who think they’re really smart, they get carried away with themselves.

Let’s get back to brass tacks here. Let’s get back to the facts.

You ready?

We have this Dred Scott decision in 1857. It was a diabolical decision, and it held, in short, that Blacks, whether enslaved or free, were not U.S. citizens.

Now, the Court led by Chief Justice Roger Taney ruled that Black people, descendants of imported slaves, were not included in the citizenship definition of the Constitution, and I “… had no rights which the White man was bound to respect.” Now that was a seven to two decision, and the decision helped trigger the Civil War, our costliest war with over 700,000 casualties that almost destroyed the country.

That war was fought for two reasons, to keep the Union together and to eliminate slavery.

So following the Civil War, after these horrendous battles and these horrendous casualties and so forth, certain formerly Confederate states, they passed restrictive laws called Black Codes. Now what did these Black Codes do? They limited the freedoms of former slaves, despite the Civil War, it was also a time when the Klan came into being, founded by former Confederate generals and so forth.

Well, Congress had already adopted the 13th Amendment in 1865, right at the end of the Civil War that formally abolished slavery throughout the country, but they determined that the 13th Amendment alone was obviously not enough to guarantee freed slaves their civil liberties, including citizenship and equal rights and equal protection and due process.

So Congress took action. After all, it was controlled by the Republicans, so Congress, in 1866 passed our first Civil Rights Act, the Civil Rights Act of 1866.

Now, that Act formally declared that all persons born in the United States, anywhere in the United States, except Indians, were citizens, granting them equal protection under federal law. Why not Indians or Native Americans? Because in many cases, the tribes were considered their own nations. Their own nations. You could be a citizen of two nations at the same time, especially within the Americas.

So they passed that.

Now, what did it state in relevant part, this Civil Rights Act of 1866, which is crucially relevant to this discussion, “Be it enacted that all persons born in the United States and not subject to any foreign power,” in other words, not a citizen of another country, “… excluding Indians not taxed, are hereby declared to be citizens of the United States.”

This, again, was aimed at what? At the former slaves, their family, their children, their future children, and the Black Codes in these southern states that were preventing the implementation of equal rights and citizenship, “… and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every state and territory in the United States to make and enforce contracts, to sue, to be parties and give evidence, to inherit, to purchase, the lease, to sell, to hold and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of every person and property as is enjoyed by White citizens and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary, notwithstanding,” a complete repudiation of the Dred Scott and a complete repudiation of the Black Codes.

So, this Act was intended to reverse the Supreme Court’s decision and eliminate these Black Codes.

So they passed the Civil Rights Act of 1866 in the overwhelmingly Republican Congress. And what happens? Well, the bill goes to a Democrat by the name of Andrew Johnson, who had been Vice President, but became President on the assassination of Abraham Lincoln. He was a Democrat from Tennessee, so President Johnson vetoed the Civil Rights Act of 1866, but there were enough Republicans in Congress to override his veto, so it remained the law, but the Republican Congress was concerned about the ease with which a law could be changed or even eliminated down the road. They saw what Johnson tried to do.

Thus, was born the impetus for the 14th Amendment. Their purpose was to constitutionalize the Civil Rights Act of 1866. How do we know this? Because they told us this.

John A. Bingham, B-I-N-G-H-A-M — these are great patriots. He was a House Republican from Ohio. In the House, he was the main drafter considered the Madison of the 14th Amendment of the language in Section I of the 14th Amendment, which includes the Citizenship Clause.

He was a member of the Joint Committee on Reconstruction in the 39th Congress, which formulated the amendment to provide a constitutional basis for Civil Rights following the Civil War. That is the constitutionalization of the 1866 Civil Rights Act.

Thaddeus Stevens of Pennsylvania, a well-known, famous, so-called radical Republican and Republican leader in the House, helped him draft the amendment and helped him usher it through the committee.

On the other side of the Capitol, on the Senate, Senator Lyman Trumbull, a Republican of Illinois. Notice, they’re all Republicans. He had drafted the 13th Amendment that had been passed in 1865 abolishing slavery formally, and was a contributor, if not the main writer, of the Civil Rights Act of 1866. He was a key figure also in drafting that process of drafting of the 14th Amendment to the Constitution, Trumbull.

Then we have Senator Jacob Howard, a Republican of Michigan, who introduced the amendment in the Senate declaring, among other things, it would extend the Bill of Rights to the states — every state.

Now, what exactly does Section I of the 14th Amendment say, the language that is being debated that was heard in front of the Supreme Court, which they say gave birth to birthright citizenship. Well, we know it doesn’t say that. What exactly does it say? Right here in my little pocket constitution, “All persons born or naturalized in the United States — born or naturalized in the United States — and subject to the jurisdiction thereof.” Remember, in the Civil Rights Act a few years earlier, which is intended to constitutionalize, it talked about having no allegiance to a foreign country or foreign nation.

Here they basically implement that by saying, “subject to the jurisdiction thereof” meaning subject to the United States and the jurisdiction of the United States. “… are citizens of the United States and the state wherein they reside.”

Remember, they’re doing this because of these Black Codes in these formerly Confederate states. “They are citizens of the United States and of the citizens wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.”

Boy, that doesn’t sound like it has a lot to do with immigration, let alone illegal immigrants, let alone the children of illegal immigrants in the United States, because it didn’t.

First, the authors of the 14th Amendment could not have meant to grant citizenship at birth to the children of illegal aliens because there were no restrictions on immigration in 1868. Hello!

Of course, they weren’t thinking about illegal aliens because there were no restrictions on immigration in 1868. Uh-oh, so there were no illegal aliens. Okay, of course, that changes over time.

Second, the language of the Civil Rights Act of 1866 from which the 14th Amendment was gleaned, states that, here we go, “All persons born in the United States and not subject to any foreign power are hereby declared to be citizens of the United States.” In other words, not citizens or persons of any other power, foreign power.

And so what they did is put that in the positive, the affirmative in the 14th Amendment, you have to be within the jurisdiction of the United States, no other country.

Clearly, this would exclude children of aliens, legal or illegal. Of course, we’re talking about children of illegal aliens right now. There’s no evidence at all that the 14th Amendment’s use of the phrase “and subject to the jurisdiction thereof” was intended to alter the meaning or the intent of the language in the 1866 Civil Rights Act. Well, why did they change it? Because it goes through a different process, but they didn’t change its intent or meaning. How do we know? Because they said so.

Third, Senators Trumbull and Howard, remember them? Two of the principal authors of the 1866 Civil Rights Act and the 14th Amendment stated that “… subject to the jurisdiction of the United States means not owing allegiance to anybody else.”

Got that? Allegiance.

How on earth is this an automatic grant of birthright citizenship to the children of illegal aliens? It’s not, and it was never intended to be.

Indeed, illegal aliens are, by definition, in the United States illegally, that is in direct violation of federal law. Does anybody actually believe, even if we play this game that the left is playing or some of the justices, does anybody actually believe that a foreigner can confer upon herself legal jurisdiction for the purpose of or even accidentally creating citizenship for a child born here? They’re not even here legally. How do they confer a status on their child born in the United States? Is that what the 14th Amendment says? Of course not.

And you won’t find it in any of the discussions, any of the debates, and you won’t find it in any of the ratification discussions in any of the states, which is why not a single justice pointed to it. There’s nothing to point to.

Justice Roberts, the Chief Justice, he turns to the Solicitor General, who gives him some examples of how this can’t be true. And he says, those are quirky examples. Well, then I would say to the Chief Justice, can you give us one scintilla of evidence to support the proposition that birthright citizenship was intended under the 14th Amendment, rather than referring to esoteric English common law? I’ve done that. I know what it means, or to Blackstone, or to anything else. Just look at it. Just listen to what they said.

Can you show me any evidence? Even quirky.

But here we have an instance where people come into the country illegally and somehow they can confer a constitutional right onto their children. Such an absurdity never entered the discussion, let alone the thinking of anyone involved in the amendment process, nobody brought it up. I’m sure nobody even imagined it.

The focus was on the newly freed slaves and their children and addressing their ongoing plight in the Old Confederacy. That’s it.

The Constitution is not granting birthright citizenship to the children of illegal aliens born in our country, which it appears to be specifically denying. It seems to be the opposite.

Fourth, there’s been reference to a case in 1898, a decision by the Supreme Court in a case called the United States versus Wong Kim Ark. And you heard this brought up during the hearing, it held that the Citizenship Clause grants birthright citizenship to a child born in the United States of legal — legal — resident aliens.

Well, where does it say that? Nowhere, nowhere. I think this decision was wrong. Others do too, but let’s pretend it’s right. There is a lot of debate about it, but it’s not relevant to the issue of children born of illegal aliens, because that wasn’t what the case was about — children of illegal aliens in the United States.

The fact is, and it is indisputable, that the framers of the 14th Amendment had no intention of creating a universal right of birthright citizenship. None stated, none imagined. There is not a scintilla of evidence as I said to the contrary.

In fact, the evidence leads to the opposite conclusion. To be crystal clear, at no time did any senator or congressman in 1866 or 1868 whether involved in the legislative or amendment processes or not, declare for birthright citizenship as a universal rule. Nowhere!

At no time was the idea of foreigners coming to the United States legally or illegally considered an automatic conference of citizenship on children born here. In the case of illegal immigrants, the argument is utterly absurd.

Finally, to most of the Supreme Court justices who did not comport themselves well, in my view, with either the facts or the Constitution. The issue is what the Constitution says, not what you want it to say. The 14th Amendment in particular, and the intent and meaning of those who wrote it and debated it. It has nothing to do with what lower court judges have opined. It has nothing to do with current practices. It has nothing to do with the administrative processes. It has nothing to do with the intent of illegal aliens or some process for determining it that can all be worked out by the other branches of government, the elected branches.

Nor does it have anything to do with your legacy and how it will be treated by the liberal media, left-wing law professors at Ivy League law schools and immigration activists. It has nothing to do with your understandable concern, if not fear of intimidation by protesters, which would undoubtedly be treated much differently, I might add, by this administration than the prior administration. You’d be protected.

The issue was actually straightforward and simple, and you all know it. There’s no such thing as birthright citizenship for the children of illegal aliens who are by definition, in our country illegally, period, and it should be left to Congress through legislation or amendment, or to the President by Executive Order to make determinations on what to do about it, not guesswork during a hearing, not nine Supreme Court justices, lawyers in robes, your job is to rule on the Constitution, and nothing else.

Should you rule the other way and actually constitutionalize that which is both unsaid and illegal, you will do irreversible damage to the Constitution, the rule of law, the legitimacy of your court and most importantly, our Republic. You will formally incentivize and promote law breaking and illegal immigration. You will legalize it through the back door and the children who are born from it.

I remind you, the phrase “birthright citizenship” appears nowhere in the 1866 Civil Rights Act, nowhere in the Constitution, nowhere in the debates about either; nowhere is codified in any congressionally passed bill signed into law by any president. Nobody has ever voted for it except you on the court, you get to decide now on a big issue, you should leave it to the people and our elected representatives, or the amendment process or the legislative process.

But you, if you rule on this and constitutionalize this, will be known as the most activist court in the history of the Supreme Court, and the damage is incalculable.

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