History and Law Agree: No Birthright Citizenship

AP Photo/Seth Robbins
AP Photo/Seth Robbins

Conservative Republicans have been saying for years that the Constitution only guarantees birthright citizenship to some children born in this country, not to all. In an unlikely turn of events, the Fourteenth Amendment’s Citizenship Clause has emerged from the halls of the law-geeks to come front-and-center in the national dialogue.

As we have mentioned in the previous three reports in this series, the Constitution says that a person is an American citizen if when he is born here he is “subject to the jurisdiction thereof.” The issue is whether illegal aliens’ “anchor babies” are “subject to the jurisdiction” of the United States, or instead if Congress’s current immigration law granting them citizenship is broader than the Constitution requires.

Professor John Eastman points out this week in National Review that even the text of the Fourteenth Amendment suggests the being “subject to the jurisdiction” of the United States does not merely mean being physically present in the country to be under our laws. Because later in Section One of the Fourteenth Amendment, the Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

When referring to persons inside America’s borders, it refers to them as “within its jurisdiction,” rather than the Citizenship Clause’s language that birthright citizenship is for persons who at birth are “subject to the jurisdiction” of the United States. The former refers to location, while the second refers to political allegiance.

Scholarship from Eastman and Professor Lino Graglia regarding the congressional debates of those who wrote and proposed the Fourteenth Amendment, also referenced earlier in this series, sheds more light on the Constitution’s text. Senator Lyman Trumbull (R-IL) explained that “subject to the jurisdiction” of the United States meant “complete” jurisdiction, which Trumbull elaborated meant a person “not owing allegiance” to any foreign nation or foreign ruler. Senator Jacob Howard (R-OH) agreed with Trumbull’s speech, adding immediately afterward that the kind of jurisdiction the Citizenship Clause spoke of was the sort of undivided allegiance to the American nation “in extent and quality as applies to every citizen of the United States now.”

The Supreme Court’s first discussion of the Citizenship Clause came from the Slaughter-House Cases in 1873, one of the most consequential cases ever decided by the Supreme Court, for better or for worse, for reasons I explain in my own academic legal work (which I published with New Mexico Law Review) and which Breitbart News will discuss in a forthcoming report in this series. In Slaughter-House—which was decided merely five years after the states ratified the Fourteenth Amendment—the Court explained that “the phrase ‘subject to the jurisdiction’ was intended to exclude from [birthright citizenship] children of … citizens or subjects of foreign States born within the United States.”

Breitbart News has already discussed how the Supreme Court reaffirmed this view by making this statement part of the Court’s holding in its 1884 Elk v. Wilkins case—decided eleven years after Slaughter-House—concluding that this proviso even excludes the children of American Indians born on Indian reservations because even though born on U.S. soil, their allegiance would be divided between the American nation and their Indian tribe, which was quasi-sovereign, almost as if it were an independent nation. The Court reasoned that the Citizenship Clause thus applies only to a child “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, not owing them direct and immediate allegiance.”

Those who remember the pro-amnesty rallies held in major cities in 2006 and subsequent years need no explanation of what “complete” or “direct and immediate” means when it comes to “allegiance.” Marchers waving the Mexican flag and chanting, “Si, se puede” (“Yes, we can”) were proudly flaunting the fact that they owed at least part of their national allegiance to Mexico, not the United States. And ironically, Mexico’s political pressure on the American government regarding immigration policy illustrates that many illegal aliens are not exclusively subject to the political jurisdiction of the United States, as a foreign power was advocating on their behalf because it claimed them as citizens. Children of those who refuse to commit themselves wholly to the United States of America as their one and only home nation are precisely the sort of people whom Slaughter-House, Elk, Trumbull, Howard, and other Framers of the Fourteenth Amendment meant when they explained who was not entitled by that constitutional amendment to birthright citizenship.

Graglia observes, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducements to illegal entry.” He then adds of those who adopted the amendment, “They could not have considered the question of granting birthright citizenship to children of illegal aliens because, for one thing, there were no illegal aliens in 1868.” It had not yet been made a crime to enter the U.S. illegally, so the provision could not have contemplated those who later would.

Both professors weigh in the Supreme Court’s 1898 case United States v. Wong Kim Ark, which Breitbart News has referenced previously and which will be the exclusive focus of a forthcoming installment in this series. That was the case where the Court held that the Citizenship Clause conferred citizenship on the son of permanent, legal Chinese immigrants who were not citizens. “It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since,” Eastman contends.

Graglia adds the crucial point that even Wong Kim Ark leans against citizenship for the children of illegal aliens. In that case, the Court noted that the Citizenship Clause would not grant citizenship to the children of foreign soldiers who were on American soil because they were engaged in hostilities against this country, or because they were kept here as prisoners. “The Court recognized that even a rule based on soil and physical presence could not rationally be applied to grant birthright citizenship to persons whose presence in the country was not only without the government’s consent but in violation of its law,” he explained. The Court’s reasoning would apply with equal force to foreigners who explicitly violate federal law in coming into this country.

Professor Peter Schuck, from Yale Law School and Professor Roger Smith from the University of Pennsylvania reach the same conclusion in their scholarly treatise Citizenship without Consent, declaring that “the framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship.”

Indeed, Eastman points out that a proposed change to the Citizenship Clause offered by Senator James Doolittle (R-WI) to specify that Indian Americans living on reservations should be excluded from citizenship was rejected because they were already not completely subject to the political jurisdiction of the United States, and therefore, were already not entitled to birthright citizenship and thus need not be specifically excluded.

Eastman also compared the language written in 1866 for the Fourteenth Amendment with the definition of citizenship written into the Civil Rights Act of 1866, which, as Breitbart News noted in our first report in this series, promised citizenship only to persons who “are not subject to any foreign power.” Eastman concludes:

As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country was not entitled to claim the birthright citizenship provided by the 1866 Act.

In fact, Eastman adds that because Indian tribes were physically situated within the borders of the United States and the tribes were dependent upon the U.S. government for various matters, a child born into one of those tribes “had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals.”

The text and history of the Citizenship Clause point in the same direction, that the Immigration and Nationality Act’s grant of citizenship to almost all foreigners’ children born on American soil is a policy choice, rather than a constitutional command, and therefore, one that Congress can change at any time.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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