Birthright Citizenship

By Terry Payne

Editor's Note:  This is one of the commentaries selected from Robin's weekly newsletter Patriot Neighbors.  If you wish to get the full edition, E-mail her at PatriotNeighbors@yahoo.com to get on her list, it's free. RK

What’s the citizenship status of the children of illegal aliens? That question has spurred fierce debate over the 14th Amendment. The post-Civil War 14th Amendment, ratified in 1868, extended citizenship to freed slaves and their children.

There are key themes from the debate:

1. “Birthright” champions claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.
2. The amendment’s original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
3. Birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the US Constitution.

The 14th Amendment, Section 1, doesn’t say that all persons born in the United States are citizens. It says, that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

“Birthright” citizenship supporters’ position that anyone born in the United States is automatically a U.S. citizen ignores the text and legislative history of the 14th Amendment. Citizenship activists erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the U.S., which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

Senator Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country. John Eastman, former dean of the Chapman University School of Law, clarified that many do not understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the U.S. Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter the citizenship status of their parents.

U.S. immigration law (8 U.S.C. § 1401), that defines who is a US citizen at birth, simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.” So, current immigration laws don’t substantiate claims that anyone born in the United States is automatically a U.S. citizen.

The State Department has erroneously interpreted statute 8 U.S.C. § 1401 to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Consequently, “birthright” citizenship has been implemented by executive fiat, not because of federal law requirements or the U.S. Constitution.

We are only one of a ridiculously small number of western countries that provides “birthright” citizenship. Granting such citizenship is not based on federal law requirements or the U.S. Constitution, but, determined upon an erroneous executive interpretation. Congress should clarify the original meaning of the 14th Amendment and associated U.S. immigration laws and reverse this unconstitutional and unlawful practice.

Read Misuse of the 14th Amendment by Susan Daniels.