Everything about the language and history of the 14th Amendment reveals that it was never intended to grant birthright citizenship to illegal aliens.
Trump set off a furor when he said he would use an executive order to end birthright citizenship. With that, the Left suddenly rediscovered the Constitution, because they said Section 1 of the 14th Amendment mandates birthright citizenship.
Here’s what Section 1 of the 14th Amendment says:
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. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
Congress drafted the 14th Amendment in 1868 in response to laws in Southern states that discriminated against blacks and ensured their disenfranchisement. For that reason, its language explicitly rebuts the language and theories found in the infamous 1857 Dred Scott decision, because that decision gave legal merit to those anti-black statutes.
For those pulling a blank when they hear the phrase “Dred Scott decision,” it was in that case that Supreme Court Justice Roger Taney explained at great length that, because slaves were not considered fully human anywhere in the world both when the Founders signed the Declaration of Independence or when they ratified the Constitution, the Founders could not have intended imported slaves or their descendants to be “men,” “citizens,” or “people of the United States,” as any of those words or phrases were contemplated in either document.
After the war, a Republican Congress tried addressing the Dred Scott decision through legislation in the form of an 1866 Civil Rights Act (which was really a partial civil rights act), but the Dred Scott decision always hung like a grim specter over effectuating the act’s intended purpose; namely, ensuring that blacks received equal treatment under the law and the full benefit of civil rights and due processes set out in the Constitution.
So it was that, by 1868, rather than trying to explain that the Taney Court’s constitutional analysis was in error, Congress simply created an amendment to the Constitution that wiped out completely the Taney court’s analysis. Henceforth, under the Constitution “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.”
In the context of giving citizenship and civil rights protection to formerly enslaved people, whether they were enslaved in states or territories, the above-quoted language is perfectly clear and its intent and effect cannot be challenged. Congress was thinking about former slaves, not immigration, whether legal or illegal, when it
ratified drafted the 14th Amendment. Indeed, it could not have been thinking about immigration, because, before 1882, the wide open, primarily agrarian, income-tax free, and welfare free United States had no immigration laws.
Keep in mind that the driving force behind the American Revolution was England’s refusal to give the colonist’s a vote in national British election. For that reason, and in the absence of welfare state or income tax, the whole point of citizenship was voting rights. Up until the modern era, citizenship had almost nothing to do with welfare, social security, public schools, free college education, or anything other taxpayer funded benefits that today’s American citizens find upsetting when they are handed over wholesale to illegal aliens.
It was this focus on voting that drove the Naturalization Act of 1790. While Congress did not place any barriers on people immigrating to America after the Revolution, it wanted to ensure that the precious vote was limited to people who were white, free, of “good moral character,” and had proven a commitment to America by living in the new nation for at least two years. Five years later, Congress amended the act to require applicants to live in the U.S. for five years and to give the federal government three years notice before applying for citizenship. Three years later, the numbers were increased to fourteen years residency and five years notice. Quite obviously, the Founding Fathers did not believe in diluting precious voting rights until people had proven their commitment to America. After repealing the Naturalization Act, Congress nevertheless retained laws setting out specific qualifications for gaining citizenship, complete with that all-important right to vote in federal elections.
Aside from naturalization issues, Americans and Congress were not concerned with non-American born residents in the years preceding the Civil War. Not only was it difficult to immigrate in an age of sail, America was primarily an agrarian country and incoming immigrants tended to disperse to un-populated regions. There was a sense of endless space and endless resources. Add to that the nonexistence of either income tax or the welfare state and you can see why people already in America were not too concerned about an influx of foreigners. While there was local prejudice, as was the case in New York and Boston when the Catholic Irish fled the potato famine, these were not national concerns. Moreover, during the Civil War, these same immigrants made great cannon fodder for the North.
After the Civil War, though, America changed, becoming an urban, industrialized nation. It was standing so tall economically that, in an age when steam made transportation both nationally and internationally easier via trains and steamships, poor and persecuted people from all over Europe and China wanted to come to take advantage of America’s riches. Significantly, these newcomers did not sneak in. They arrived on boats and the United States was able to vet them. Some of the vetting was legitimate — health concerns — and some illegitimate — pure racism — but all of the decisions were America’s and not the immigrants’.
In the 1870s, Americans were terrified by the so-called “yellow peril” from China. Beginning in the 1840s, a huge influx of Chinese had arrived in the West both to work on the railroads and take advantage of the Gold Rush. They were hard workers and extraordinarily productive despite the harsh limitations placed upon them. Culturally and racially, they stood out from past Caucasian immigrants and, once the railways lines were built and the Gold Rush was over, white Americans viewed them as a threat to American jobs. (The perceived threat to American womanhood was simply a ginned-up fear put out by people who saw the Chinese as an economic threat.) By 1882, therefore, Congress passed the Chinese Exclusion Act — the first American immigration law — explicitly limiting Chinese immigration. The law existed in various forms through 1943.
It was in that context that the Supreme Court, in 1898, decided United States v. Wong Kim Ark, a decision you’ll hear about a lot from the Open Borders and Chamber of Congress crowd. Very importantly, though, that case did not hold that Section 1 of the 14th Amendment applied to every baby born in the United States whether the parents were legal residents or not. It held, instead, that Section 1 applied to every baby born to legal residents, whether they were citizens or not, including babies born to the disfavored Chinese. That case is why I’m an American citizen even though my parents were legal green card holders when I was born. The Supreme Court did not address Section 1 of the 14th Amendment in the context of granting automatic citizenship to children born to illegal immigrants nor has any other case done so.
I won’t run down here all the immigration laws in the 20th century. Suffice to say that, after 1882 and until the Obama administration, all Americans, including Harry Reid, Bill Clinton, and Obama himself, agreed that the United States had the sovereign right to control the number of foreign-born people entering the United States.
Over the decades, as the welfare state expanded and low wage jobs moved to the same countries from which the new immigrants were fleeing, the Democrats’ traditional working class constituency became increasingly hostile to unlimited immigration, especially illegal immigration from south of the border. These Roosevelt- and Kennedy-era Democrats felt that their party ought to step up and protect them from people who were depressing their wages, bringing drugs into their communities, and increasing crime — all problems that affected the old working-class Democrat constituency but left untouched the new constituency of affluent Leftists in rich Blue enclaves.
To the working class’s shock, not only did these affluent new Democrats not protect their old-time voters, they turned on them. Thus, when the rich new Blues realized that they had maxed out on available voting blocs in America, they went all-in importing an entirely new class of voters who, in exchange for American beneficence (welfare, public education, free healthcare, etc.), promised decades of future Democrat political power.
But back to the 14th Amendment and the meaning of the that word “jurisdiction”:
14th Amendment. Section 1. [1st Sentence:] 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. [2nd Sentence:] [1st Clause:] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [2nd and 3rd Clauses:] nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Does the fact that the word “jurisdiction” shows up twice in the same paragraph mean that it has the same meaning both times? Before I get to Brennan’s dictum in that 1982 case, let me take a minute to look at the language logically. We’ll start with the 14th Amendment, Section 1, 1st Sentence:
[1st Sentence:] 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.
Consistent with the 1868 goal of completely repudiating the Dred Scott decision so as to bring slaves within the fold as American citizens, the first sentence states that, if you are both born in the U.S. (a geographic concept) and subject to its legal strictures (a political concept), you are a citizen. The same is true for people who, while not born in the U.S., have met naturalization requirements, affirmatively making themselves citizens. As a reminder, this language predated the concept of legal versus illegal immigration.
And here’s the second sentence in Section 1 of the 14th Amendment:
[2nd Sentence:] [1st Clause:] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [2nd and 3rd Clauses:] nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
As my bracketed information shows, unlike the first sentence in the 14th Amendment, Section 1, this second sentence has three distinct clauses. Let’s break them down. Here’s clause 1:
[Ist Clause:] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
Here’s Clause 2:
[2nd Clause:] nor shall any State deprive any person of life, liberty, or property, without due process of law;
And here’s Clause 3:
[3rd Clause:] nor deny to any person within its jurisdiction the equal protection of the laws.
I’ve highlighted something significant about Sentence 2, which is that the sentence refers both to “citizens” and “persons.” Clearly, Congress in 1868 believed that one can be a “person” on American soil without being a “citizen.” In other words, not all persons on American soil are automatically citizens. The two words must be understood as a matter of statutory construction to have different meanings.
“Citizen” is a term of art meaning one who votes. It also presumably means that, when a citizen travels, he is accorded certain protections abroad based upon his American citizenship. If an American citizen is being tried for murder in Dubai, the U.S. will try to return that citizen to the U.S. because the U.S. has political jurisdiction over the citizen.
“Persons” are different, though. They don’t have voting rights and the U.S. has no standing over them or even interest in them when they are outside of America’s borders. For example, if a Mexican man who is a green card resident commits a crime in Mexico and is arrested, America lacks standing to claim jurisdiction over this person, while Mexico undoubtedly has both political and geographic jurisdiction. Within U.S. borders, though, due process and equal protection extend to all people whether or not they are citizens. (Incidentally, all of the above language, while it does not turn on citizenship, does require residency. Honduran people on Mexican soil therefore cannot claim either due process or equal protection, no matter how many lawsuits they file.)
Significantly, the 1st Clause in the 2nd sentence protect’s “citizens’ ” privileges and immunities, which must include the right to vote as well as both protections from certain government actions and protections when traveling abroad. However, the 2nd and 3rd clauses in that same sentence extend to all “persons,” whether or not they are “citizens.” These “persons,” if they are resident on American soil, are entitled to due process of law and equal protection. Looked at that way, I could rewrite Section 1 of the 14th Amendment to read this way:
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, which gives them the right to vote as well as the umbrella protection of the American government. No State shall make or enforce any law which shall take away a citizen’s right to vote or the unique protections conferred on them as American citizens; nor shall any State deprive any person, whether that person is a citizen or not, of life, liberty, or property, without due process of law; nor deny to any person, whether that person is a citizen or not, within its jurisdiction the equal protection of the laws.
That’s a lot of content for a single, two-sentence paragraph.
You and I, having parsed the above language, might feel compelled to admit that the language means that (as the Supreme Court has held) children of illegal aliens are entitled to free public education or that people who have managed to enter the country illegally should still get welfare. However, unlike Leftists, we would not go automatically to the next step and without further analysis say that these resident persons are citizens with that precious right to vote. The dividing line for distinguishing between citizens and persons under the 14th Amendment is that phrase in the first sentence — “subject to the jurisdiction thereof.” What does it mean?
Thankfully, we don’t need to guess, nor do we need to rely on dictum from Wong Kim Ark to figure it out. Already in the 19th Century, both Congress and the Supreme Court made it perfectly clear what “subject to the jurisdiction thereof” means — and it doesn’t mean people who sneak into this country illegally or storm the border waving another country’s flag. Back in July, John C. Eastman explained at length what jurisdiction means and I’m going to break my usual rule against lengthy quotations because what he says is too clear and important for me to try to parse it:
The phrase, “subject to the jurisdiction,” standing alone, can have two meanings: A full, allegiance-owing jurisdiction, and a partial, territorial jurisdiction. Anyone present in the United States (save for diplomats) is subject to her partial, territorial jurisdiction. Think of a British tourist temporarily visiting the United States on vacation, who is subject to the law that we drive on the right side of the road, not the left.
Even those who are in the country illegally are subject to our laws while here. Subject to the full jurisdiction, on the other hand, involves some kind of allegiance, such as arises when someone has become, or is in the process of becoming, part of the body politic. The issue, then, is which of these two meanings was intended by the drafters and ratifiers of the 14th Amendment.
On that, we do not need to speculate, because the question was posed directly to the leading sponsors of the 14th Amendment. Responding to the question whether the clause would mandate citizenship for “Indians” because they were “most clearly subject to our jurisdiction, both civil and military,” Senator Lyman Trumbull (R-Ill.), a key figure in the drafting and adoption of the 14th Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
Similarly, Senator Jacob Howard (R-Mich.), who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
And what was the “same jurisdiction” that applied at the time? It was set out in the 1866 Civil Rights Act, which the 14th Amendment was intended to constitutionalize: “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.” The slight variation in language was designed to address the issue that Indian nations were not “foreign powers,” but domestic ones; it was not designed to broaden the mandated citizenship to anyone who managed to make it to U.S. soil even while maintaining their allegiance to a foreign power.
In the Slaughterhouse Cases (1872), the Supreme Court agreed. This was the first case to come before it after the adoption of the 14th Amendment, and the Court there noted that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” So much for the claim that the “subject to the jurisdiction” clause excluded only the diplomatic corps.
Granted, that was dicta, but it became holding a decade later, in the case of Elk v. Wilkins. There, the Supreme Court held that an “Indian” born on U.S. soil was nevertheless not a citizen by virtue of the 14th Amendment’s citizenship clause because the phrase, “subject to the jurisdiction,” required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Hence, the Supreme Court made clear that the phrase, “subject to the jurisdiction,” was used in the complete sense, not the partial, territorial sense. As Thomas Cooley noted in his authoritative treatise, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”
Much is made of the Supreme Court’s later decision in Wong Kim Ark, in which the Court held in 1898 that the child born on U.S. soil to Chinese immigrants was a citizen under the terms of the 14th Amendment. But Wong Kim Ark’s parents were permanently and legally domiciled in the United States, a point that the court went out of its way to emphasize. The holding of that case (as opposed to some of its broader dicta) therefore did not address whether the children of parents who were here only temporarily as visitors (“temporary sojourners,” to use the language of the day) and who continued to owe allegiance to a foreign power, were automatically citizens merely by birth on U.S. soil. And it certainly did not address whether the children of parents who were in this country illegally could lay claim to automatic citizenship. And no case since then has so held, either. Anyone who says otherwise is either ignorant or lying.
The best way I can sum all of the above up is to say that President Trump is exactly right that Congress did not intend for everyone who enters the country, whether legally, through stealth, or through invasion, gets the unique right and benefit of the American vote. Moreover, a Supreme Court composed of judges who were around for Dred Scott, the Civil War, the Civil Rights Act of 1866, the ratification of the 14th Amendment, and even the new immigration laws acted in the wake of “yellow peril” fears, fully understood as well that the blessing of American citizenship requires a level of allegiance to America, and a complete freedom from any allegiance (emotional or legal) to another country, that exceeds mere residence.
If we want to stop illegal immigrants from getting welfare we have three choices: stop giving welfare to everyone resident in America, amend the 14th Amendment, or crack down on illegal immigration. Same goes for public education and the whole panoply of financial benefits the states and federal government bestow on poor people in America, no matter how they got here.
But when it comes to citizenship, the only thing Trump needs to do is sign an executive order stating that, in compliance with the wording of the 14th Amendment, the intent of its drafters, and the decisions of the Supreme Court of the United States, the children of people in this country illegally will no longer be deemed citizens of the United States.