The Constitution Doesn’t Require Birthright Citizenship

Birthright citizenship has become a hot topic at the start of the 2016 presidential campaign. Candidates are forced to address it due to the Republican frontrunner raising it as an issue, along with other immigration-related issues.

At the heart of birthright citizenship is whether children of illegal aliens born on American soil (also children born in the U.S. through the increasingly popular practice of “birth tourism”) should have automatic U.S. citizenship, as has become the de facto case under current interpretation of the law. We are among the rare countries to grant citizenship with such largesse.

Defenders of birthright citizenship claim the 14th Amendment of the Constitution plainly upholds it, so consequently there is no way to end this provision without amending the Constitution. The contrary view is that the 14^th Amendment does not mandate automatic citizenship for anyone born in the U.S., and that Congress can simply pass legislation to change the status quo.

The latter view is the stronger position, in terms of the wording of the amendment, the expressed intent of its authors, subsequent court decisions and our nation’s philosophy of citizenship. The basic purpose of the 14^th Amendment was to ensure citizenship for ex-slaves who gained their freedom following the Civil War. The Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and the State wherein they reside.”

The key phrase is “and subject to the jurisdiction thereof.” Supporters of the status quo maintain that this refers to illegal alien parents and their children born in the U.S. because as long as they are here they are subject to our legal jurisdiction. But the insertion of this clause certainly suggests that being under U.S. jurisdiction is a qualification not necessarily possessed by everyone living here or born here. Did the author of the amendment, Sen. Jacob Howard of Michigan, intend a meaning different from mere legal jurisdiction?

Most definitely he did. During the debate on the amendment recorded in The Congressional Globe (May 30, 1866, p. 2,890), Howard addressed the proposed amendment with respect to the status of American Indians. He stated, “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and have always been in our legislation and jurisprudence, as being quasi foreign nations.” In support of Howard’s position, Sen. Lyman Trumbull of Illinois stated that, “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

The Supreme Court affirmed this interpretation in The Slaughter-House Cases in 1873. The majority of justices stated that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens and subjects of foreign states born within the United States.”

The Elk v. Wilkins case (1884) also upheld this principle. The Court ruled that an American Indian, John Elk, was not a citizen because he was born on a reservation, a political entity not owing allegiance to the U.S. In 1924 Congress used its authority to set standards of naturalization to grant citizenship to all Indians regardless of tribal affiliations – evidently in the belief that those affiliations no longer constituted a conflict of loyalty.

From this legislative and legal history, it seems clear that the children of illegal aliens, whose parents owe allegiance to other countries, are not subject to U.S. jurisdiction – and therefore aren’t citizens. Congress, with this understanding, could affirm this by passing legislation to end automatic citizenship for those children.

Nevertheless, one must concede that still another Supreme Court ruling raised some ambiguity about these issues. This was the United States v. Wong Kim Ark case (1898). In a five-to-four decision the Court held that the son of a Chinese couple legally residing in the U.S. was a citizen. The parents were subjects of China, though the Court noted that they had “permanent domicile and residence.”

This decision on its face ran counter to the Slaughter-House and Elk cases. One dissenting justice maintained that the decision was a legal regression to the feudal notion that anyone born in a territory is a subject to its ruler. This clashed, he said, with the American ideal of citizenship being a matter of allegiance and loyalty.

In any case, the Wong Kim Ark case is the legal justification that many supporters of birthright citizenship reference. That justification, however, is by no means clear. The ruling involved legal residents, rather than illegal aliens. One could make a case that by having “permanent domicile and residence” the couple had displayed allegiance to the United States, even if they were technically foreign subjects. Illegal aliens specifically show lack of allegiance by defying our laws.

Richard Posner, a prominent federal judge, says that Congress should pass a law to stop “awarding citizenship to everyone born in the United States.” Advocates of birthright citizenship no doubt would challenge such a law in the court, and the issue probably would go the Supreme Court. If the justices ruled on the basis of original intent, the weight of legal precedent and the American concept of citizenship, birthright citizenship would end.

PLEASE CONTACT YOUR ELECTED OFFICIALS AND ASK THAT THEY SUPPORT HR 140 AND S 45 which would clarify that citizenship at birth is granted only if one parent is a U.S. citizen, lawfully admitted permanent resident alien or alien on active service in the military.