Ending Birthright Citizenship is Constitutional and Congress Should Act Now

In his first term, Donald Trump Tweeted out:

"So-called Birthright Citizenship…. will be ended one way or the other. It is not covered by the 14th Amendment because of the words; subject to the jurisdiction thereof.' ...".

As the 47th President, Trump signed an executive order (EO) ending recognition of so-called birthright citizenship.

A day later, the EO was contested in Federal court and an Obama appointed judge issued a nationwide injunction. This past week, the Supreme Court made history with the ruling that individual Federal Judges cannot issue nationwide injunctions. The EO moves forward, though a case will likely get to the Supreme Court, which should rule against Birthright citizenship. Trump is right on this issue, as ending birthright citizenship would be following the original meaning of the 14th Amendment. Congress should act, follow the 14th Amendment, and definitively end birthright citizenship by statute.

Section 1 of the 14th Amendment begins:

"All persons born or naturalized in the United States." (are citizens of the United States). Stop there and leave out the caveat and birthright citizenship would appear to be the clear intent. The clause, however, contains the critical words "and subject to the jurisdiction thereof”.

Constitutional Attorney Mark Levin, a former senior member of the Reagan administration, has written about the importance of the caveat “subject to the jurisdiction thereof”:

"If it (14th Amendment) means what the proponents of birthright citizenship say, it would stop right there. “All persons born or naturalized in the United States” are citizens. ... Then it says, and, ‘subject to the jurisdiction thereof.’ ... (importantly) Jurisdiction has nothing to do with geography. Zero. It had to do with political allegiance to the United States of America. How do we know it?

Because they (those drafting the 14th Amendment) said it. ..." Those breaking laws to enter the US (or those visiting as tourists) do not owe allegiance to the US and remain citizens of another foreign entity. They cannot pass citizenship.

It's important to understand why the 14th Amendment included a provision for citizenship. The 13th, 14th and 15th Amendments were drafted and passed in the immediate aftermath of the Civil War. The 13th Amendment ended slavery, the 14th Amendment ensured due process and equal protection for former slaves, and the 15th Amendment guaranteed former slaves the right to vote. 

The citizenship clause of the 14^th Amendment helped overturn the pre-war Dred Scott decision by the Supreme Court holding that slaves were not citizens. Additionally, the citizenship clause of the 14th Amendment helped end any argument that citizenship in the United States was solely founded upon citizenship to a state first. 

This had justified the legality of serving in the Confederacy by following one's state citizenship against the United States.

Following the “subject to the jurisdiction thereof” caveat, the citizenship clause did not include all born on the territory of the United States from the beginning. A good example can be seen with citizenship of American Indians. 

At the time of the 14th Amendment, and for decades thereafter, native Americans were not granted citizenship despite being born within the geographic boundaries of the United States. Parents were indirectly under the jurisdiction of the United States through treaties with the various tribes, but babies were not considered "subject to the jurisdiction thereof." 

Congress, using the provisions of Section 5 of the 14th Amendment (The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article), and the Article 1, Section 8 (congressional power over naturalization/immigration) finally granted citizenship to native Americans born in the US on June 2, 1924.

Babies born to foreign consuls, ministers and ambassadors serving in the United States were not, and still are not, citizens. Those babies are under the jurisdiction of their parents, and jurisdiction to their home nation. 

Similarly, babies born to those illegally entering the United States remain citizens of the countries from which the parents departed due to the status of their parents. We have various treaties with other nations for minors providing foreign jurisdiction for citizens of foreign nations, and a newborn is not subject to criminal law.

Other examples abound of those who are not citizens despite birth on American soil, and interestingly, the Supreme Court has not yet ruled on the issue of the children of illegal immigrants obtaining birthright citizenship. In 1898, the Court held in favor of citizenship for children born in the US to parents who were legal permanent US residents. However, the court has never ruled on children of illegal aliens.

An important piece of history most lawyers are not aware, as law school does not teach about this subject. 19^th century Congressman Aaron Sargent from California argued, without dispute by those who passed the 14th Amendment, that the citizenship clause did not apply to babies born to aliens even within the territory of U.S. This was during the debates over the Naturalization Act of 1870 only two years after the passage of the 14^th Amendment. This is part of the Congressional record and critical to the meaning of the clause.

The Supreme Court has rightly prevented lower courts from stopping the execution of the Executive Order ending birthright citizenship. If and when a case goes to the Supreme Court it will establish the proper precedence of ending the practice. It is time for Congress, under its Article I, Section 8 duties to control immigration, to follow the Constitution and end birthright citizenship for good.