Trump Correct to End Birthright Citizenship, The Practice is Unconstitutional

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

A recent headline:

Trump calls birthright citizenship ridiculous, plans to sign 'executive order'...

In my 2014 debut as a published author, 25 Myths of the United States Constitution, I address the unconstitutional belief in Birthright Citizenship.  For your convenience, here is that chapter (buy the book for the other myths):

Myth #13:

 Anchor Babies are American Citizens

Anchor babies have become a hot issue when it comes to the immigration debate.  Those that support amnesty programs argue that "since the American born children of undocumented immigrants are American citizens, deporting their parents splits up families."  The strategy is to pose an argument that is laced with emotional reality that forces their opposition to concede, and work for a compromise that may allow some illegal aliens to remain in the country, and be eligible later for an unconstitutional amnesty policy (Article I, Section 9, Clause 3 disallows "ex post facto Law" to be passed, making federal amnesty programs unconstitutional).

The premise of the argument, however, has a flaw.  The argument that the children of illegal aliens born in the United States are American citizens is not true.

The source used to back up the argument that the children of illegal aliens born on U.S. soil are American citizens comes from the Citizenship Clause of the 14th Amendment.  The clause reads: "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 term "subject to the jurisdiction, thereof," is the key, here.  If you go to the debates on the congressional record of the 14th Amendment, "full jurisdiction" means "full allegiance to America."  Since the parents are in this country in violation of immigration law, and are subject to the jurisdiction of Mexico (or whatever country they came from), a divided loyalty exists.  Since illegal aliens are not subject to the complete jurisdiction of the United States, their children born in the U.S. are not automatically American citizens.

Upon examination of the original intent of the Citizenship Clause, the Congress of the United States, while debating the 14th Amendment, intended for the clause to protect the children of the newly emancipated slaves.  Their reasoning, however, took into consideration that the clause may be used to subvert immigration policies.

As far as the founders were concerned, there must not be any divided allegiances.  Their experience with the Tories, persons loyal to the British Crown, demanded that the laws of the United States protect the American system against those that would compromise it because of their allegiance to a foreign power.

Even a hundred years later President Theodore Roosevelt understood the importance of full allegiance to the United States: "Any man who says he is an American, but something else also, isn't an American at all.  We have room for but one flag, the American flag.  We have room for but one language here, and that is the English language ... and we have room for but one sole loyalty and that is a loyalty to the American people." -- Theodore Roosevelt, 1919.

Despite the defeat of the Confederacy in the American Civil War, after hostilities ended the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been.  The former slaves were present in the United States "legally," and because they were here legally they were "subject to the jurisdiction thereof," but they were still not receiving any assurance of equal protection under the law.

The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "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. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

The definition of "persons within the jurisdiction of the United States" in that act, was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.

Michigan Senator Jacob Howard, one of the two principal authors of Section 1 of the 14th Amendment (the Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

Following are exact quotes from the debate:

Mr. Howard, “I now move to take up House joint resolution No. 127.”

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

Howard said, “The first amendment is to section one, declaring that all ‘persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.  I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion.  This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.  This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.  It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.  This has long been a great desideratum in the jurisprudence and legislation of this country.”

He even went out of his way to indicate that children born on American soil of foreign citizens are not included.

Clearly, the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.

The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."

The full quote by Senator Trumbull reads:

"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."

Trumbull continued, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."

Senator Howard concurred with what Mr. Trumbull had to say: "I concur entirely with the honorable Senator from Illinois [Trumbull], 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, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."

Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.

The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts.  Changes to the Constitution can only be made by amendment (Article V.).

In the end, the truth of the matter is that only children born to American citizens, and those people who have been naturalized, can be considered citizens of the United States, since only an American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now.

Of course, there is the question of dual-citizenship, but that is yet another thing that our current system has created that was enabled in complete disregard for the principles set forth in the U.S. Constitution.  Based on the original intent of the Founding Fathers, and the 14th Amendment, there should be no dual-citizenships.

Today, few people seem to be willing to renounce completely their allegiance to their natural country of origin, and by allowing this our federal government is making a mockery of our citizenship laws as originally intended by our founders, and the framers of the 14th Amendment.

The Constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American borders.  Allegiance, or complete jurisdiction, of the child's birth parents at the time of birth, is an integral part of whether or not that child is an American citizen.  Therefore, the idea that anchor babies are automatically citizens because they were born into this world on American Soil is a myth.

-- Political Pistachio Conservative News and Commentary