Should Migrant Children Receive Birthright Citizenship?

            The liberty principle for this Freedom Friday concerns the perceived right of citizenship for the children of illegal immigrants. Long-time readers know that I do not believe that there is a such a right to United States citizenship to anyone and everyone who is born on U.S. soil. This week President Donald Trump reopened the discussion when he said that he is taking a closer look at the situation. Liberal are throwing their usual temper tantrums.


            In fact, leftists are shrieking their usual name for anything conservative and/or good for the country. They are, of course, calling Trump a “racist” and claiming that his idea violates both the Constitution and the Fourteenth Amendment. They say that the topic has been decided and does not need any more discussion. A professor of constitutional law does not agree with them.


            In his article titled “George Washington Law Professor: Opposing Birthright Citizenship Is Not Racist,” Joe Saunders quotes from an article by “one of the country’s best known legal scholars.” Jonathan Turley is that professor of constitutional law at George Washington University. 


            Turley reminds his readers that the Civil War was fought over slavery. [In fact, more than 600,000 Americans died in the war effort to end slavery.] Turley also reminds us that the Fourteenth Amendment was passed in 1868 to protect the rights of citizenship of freed American slaves. These two statements are clear to most Americans, but “little else is.” 

Trump is not the first leader to oppose birthright citizenship, but he might be the last. Even Democrat Harry Reid, the former Senate Majority Leader, is on record as opposing claims of birthright citizenship. In fact, most countries in the world reject such claims. After explaining the above, Turley says, “One can be entirely on board with the outcome of the Civil War, not be a racist, and still oppose birthright citizenship.” 

The 14^th Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” But between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed scholars for 150 years. The dominant view of law professors is the line as a whole guarantees that anyone born within the United States becomes a[n] American citizen. But many believe that the caveat means you must be here in a legal status, that if you are not a[n] American citizen, then you are a legal resident.

At the time it was written, the sponsors expressly stated its purpose as protecting freed slaves and not the offspring of foreign citizens. Republican Senator Jacob Howard, who was a coauthor of the 14^th Amendment, said that it was “simply declaratory” of the Civil Rights Act to protect freed slaves. He assured senators, “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.” 

Then there was Republican Senator Lyman Trumbull, who was the author of the 13th Amendment, the Civil Rights Act, and a drafter of the 14^th Amendment. Trumbull stressed that the six words only included those “not owing allegiance to anyone else.” 

Yet, other members objected that the language could cover anyone physically within the United States.

The Supreme Court seems to reflect the same confusion over the caveat. Not long after the 14^th Amendment was ratified, the justices seemed to affirm that the language was meant solely to protect the status of freed slaves. In the Slaughterhouse Cases, the Supreme Court explained the phrase “subject to its jurisdiction” was “intended to exclude from its operation” children of “citizens or subjects of foreign States born within the United States.” A few years later, the justices cast doubt over claims that the 14^th Amendment grants citizenship to “children born within the jurisdiction without reference to the citizenship of their parents.”

Later, in 1884, the Supreme Court stated unequivocally in John Elk versus Charles Wilkins that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power,” as well as owe the United States “direct and immediate allegiance.” Yet, the Supreme Court also held later that the 14^th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” But the parents in that case were legal residents. The justices also rejected efforts to draw distinctions between individuals within the United States for other purposes of the 14^th Amendment.

            So, if you are wondering what all this means, you are in good company. Turley says, “anyone who claims that this issue is clear is being less than candid. There are strong arguments on both sides of this question.”

            What does seem to be clear is that the issue of birthright citizenship will end up at the United States Supreme Court if President Trump pursues it – and that may be the exact reason why he wants to pursue it. This is an issue that needs a clear solution, and the Supreme Court is the place to get that answer. There answer needs to be a crystal clear about who qualifies for birthright citizenship in the United States and who does not. As Turley emphasizes, those “six words followed by 150 years of conflicting legislative and judicial statements on its meaning” have brought us to this point of total confusion.

            If the Court comes down on the side of illegal aliens, there is nothing that Trump can do about it short of a constitutional amendment – and our borders will continue to be overrun by pregnant illegal aliens. If the Court comes down on the side of American citizens and legal residents, I believe that it will stop many of the illegal immigrants from coming to the United States. Birthright citizenship is a strong magnet, and it has been drawing more and more people from numerous countries to America!