Does the Fourteenth Amendment Apply to All Births in U.S.?

The liberty principle for this Freedom Friday concerns birthright citizenship. Section 1 of the Fourteenth Amendment to the United States Constitution 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. 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. (Emphasis added.)

According to Jon Guze, a Senior Fellow at Legal Studies of the John Lock Foundation, the Fourteenth Amendment “was ratified 150 years ago – on July 9, 1868. It was one of the ‘reconstruction amendments’ that were passed after the Civil War to fully and permanently abolish slavery and protect the rights of freed slaves….” 

Many people read the first part of “the citizenship clause” – “All persons born or naturalized in the United States” – and pass over the last part of the clause – “and subject to the jurisdiction thereof.” The first part is often discussed, but little attention is given to the second part. This situation may soon change.

In kicking off his second term as President of the United States, Trump signed dozens of Executive Orders, one of which applies to this discussion. Candace Hathaway at The Blaze provided information on the order. 

The executive order, titled “Protecting the Meaning and Value of American Citizenship,” argued that “the privilege of United States citizenship does not automatically extend to persons born in the United States” if those individuals’ parents were illegally in the country or not lawful permanent residents at the time of their birth.

Soon after Trump signed the executive order, “the American Civil Liberties Union filed a lawsuit against the administration, arguing that the action was unconstitutional. In addition, “attorneys general from 18 states sued Trump to block the executive order. San Francisco and Washington, D.C., also joined the legal action against the president.”

The citizenship clause has never been challenged in a case involving an illegal immigrant. Many people use the case of 20-year-old Wong Kim Ark to show that the “anchor babies” of illegal immigrants should be given U.S. citizenship. However, Wong was born to immigrant parents who were in the United States legally. U.S. birthright citizenship established by 1898 San Francisco case involving Chinatown resident - CBS San Francisco

Wong was born in the United States, and he was living in San Francisco when he made a trip to China. Upon his return to the United States, he was denied reentry on the basis of the Chinese Exclusionary Act.  He sued the government and said that he was guaranteed citizenship by the Fourteenth Amendment. He won the case.

Trump and many other Americans, including me, believe that the current understanding of the Fourteenth Amendment is wrong. We believe that the guarantee of the Fourteenth Amendment applies only to babies born to parents who are in the United States legally. Trump obviously wants the Supreme Court to rule on the matter, and the lawsuits by ACLU and eighteen states are helping to move it along. Hathaway gave the following information. 

Trump’s order seeks to clarify the 14^th Amendment, stating that it “has never been interpreted to extend citizenship universally to everyone born within the United States.” Instead, the action asserts that children with noncitizen parents are not “subject to the jurisdiction” of the U.S.

The Trump administration anticipated legal challenges concerning the executive order.

Harrison Fields, White House principal deputy press secretary, told Fox News Digital, “Radical leftists can either choose to swim against the tide and reject the overwhelming will of the people, or they can get on board and work with President Trump to advance his wildly popular agenda.”

“These lawsuits are nothing more than an extension of the left’s resistance – and the Trump administration is ready to face them in court,” Fields said.

Long time readers of this blog know that I have railed about birthright citizenship many times over the past fifteen years. I hope that this case does go to the Supreme Court, and I hope that I am proven correct in my opinion.