Part 2: Freedom from Automatic Birthright Citizenship

            The liberty principle for this Freedom Friday concerns the right of sovereign nations to determine who is a citizen and who is not. In order for the United States to remain a sovereign citizen, the Fourteenth Amendment to the United States Constitution must be revisited and clarified as to its description of who qualifies to be a citizen of the United States. I have written about this subject numerous times because I believe that the amendment is being interpreted wrong and should be changed.

            So, what does the Fourteenth Amendment actually say? Section One of the Fourteenth Amendment states: “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….” Many years ago someone interpreted this statement to mean that anyone could come to the United States to have a baby and the baby would automatically become a citizen of the United States. This interpretation is wrong on several levels.

            First, the amendment gives the following qualification: “and subject to the jurisdiction thereof.” Any pregnant woman who is in the United States illegally is not “subject” to the laws of this nation. If common sense rules, this means that her child is here illegally and not subject to the laws. In a post from 2010 Mark Alexander explains this problem in an article titled “So-Called Birthright Citizenship.” 

To discern the authentic meaning of this amendment as originally intended by its framers, we must first start with its plain language, and then further examine the context under which it was proposed and passed. Any debate about the authority of our Constitution must begin with First Principles, original intent.

“All persons born or naturalized in the United States…” This language is plain and easily understood.

“[A]nd subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language, too, is plain and easily understood, unless there is a contemporary Leftist political agenda, which does not comport with that understanding….

So, what does “subject to the jurisdiction thereof” actually mean? Beyond the apparent plain language definition, a factual interpretation is supported by the context in which this amendment was framed and ratified.

            Alexander continues by explaining that freedmen or former slaves were freed when Abraham Lincoln gave his Emancipation Proclamation in 1863, but they did not “enjoy the same rights” as other Americans. They were “in the United States legally” and were “subject to the jurisdiction thereof,” but “they had no assurance of equal rights.”

            Alexander explains that Congress attempted to fix the problem by passing the Civil Rights Act of 1866: “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….”

            Alexander notes that the “first definition of `citizenship’ in legal references is `nationality or legal status of citizenship.’” He continues, “The 1866 act defined `persons within the jurisdiction of the United States’ as all persons at the time of its passage, born in the United States, including all slaves and their offspring.”

            Alexanders says that the sponsors of the amendment feared that a Congress sometime in the future would overturn the Act, “so they proposed the 14^th Amendment to our Constitution, which upon ratification, would protect the provision of the 1866 Act from legislatures and the courts.” Alexander continues by quoting the sponsor of the law and other people.

Michigan Sen. Jacob Howard, who sponsor[ed] Section 1 of the 14^th Amendment (the Citizenship Clause), noted that “subject to the jurisdiction thereof” was “simply declaratory of what I regard as the law of the land already.” He stated further, “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers…”

Asked for his understanding of “subject to the jurisdiction thereof,” Illinois Sen. Lyman Trumbull, Chairman of the Judiciary Committee who was key to the Amendment’s passage, responded, “That means `subject to the complete jurisdiction thereof.’ What do we mean by `complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.”

Sen. Howard followed, “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 … that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

According to University of Texas legal scholar Lino Graglia, in the plain language of its author, those who are born to parents who are legally in the U.S. are thus, “subject to the jurisdiction thereof,” and have claim to birthright citizenship. Just as plain is the fact that the 14^th Amendment would exclude those born to illegal aliens.

            Alexander posted another interesting essay on this topic in 2015 with the title “The Anchor Baby Myth – The Constitution v Birthright Citizenship” that is well worth reading. He makes the following point about birthright citizenship.

The current debate centers on whether or not to “repeal” birthright citizenship. But framing this argument with the word “repeal,” whether by legislation or constitutional amendment [notice that he does not suggest executive order], implies that there is something in our Constitution or subsequent legislation that already affirms a right to birthright citizenship. No such provision exists, except as wholly misinterpreted by courts and propagated by politicians pandering for mostly Hispanic and Latino votes.

Note that in Jefferson’s words regarding immigration he specifies “our laws acknowledge … your right to join us” and the requirement that immigrants conform “to our established rules.”

But, as usual, “laws” and “rules” are now wholly ignored in favor of political expedience.

What law was Jefferson referencing? Before addressing the current immigration fiasco, let’s revisit some fundamental constitutional Rule of Law in regard to immigration.

Our Constitution references immigration only in Section 1 of Article Two, noting, “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” It was understood that “natural born” meant one born on U.S. soil prior to the enactment of our Constitution.

A year after our unanimously ratified Constitution superseded the Articles of Confederation, the term “natural born citizen” was defined in the first immigration legislation passed by Congress – the Naturalization Law of March 26, 1790.

Yes, defining legal immigration standards dates back to the earliest days of our Republic.

The 1790 Act stipulated immigrants had to be legal residents in the U.S. for two years prior to applying for citizenship. The Naturalization Act of 1795 superseded the Act of 1790 and required five years’ residence, and the Naturalization Act of 1798 increased that to 14 years’ residence.

That law also provided that “children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” In other words, if born on foreign soil, you also were extended rights of citizenship if your father was an established American citizen.

            As one can clearly see from all the quotes and various Acts of Congress, there was never any attempt to bestow automatic citizenship upon babies of people who were in the United States illegally. The interpretation that birthright citizenship extends to the children of illegal aliens or undocumented immigrants is wrong. Correction to this interpretation should be made as quickly as possible – whether by Act of Congress or by an Executive Order. Otherwise, we are in danger of losing the sovereignty of our nation.