Another take on the 14th Amendment

No, birthright citizenship isn't required by the Constitution

By Ryan Williams

US President Donald Trump with Attorney General Jeff Sessions on December 15, 2017. (NICHOLAS KAMM / AFP/Getty Images)

Does anyone truly believe our forefathers purposely crafted a loophole in the Constitution to benefit the illegals of today?

As a matter of constitutional first principle, no branch of our government can amend the Constitution. Not the Congress, not the President, not even the Supreme Court. Only “we the people” can do that, by one of the two procedures specified in Article V of the Constitution.

Had President Trump’s recent comments proposing to end birthright citizenship by executive order suggested that he thought he could unilaterally amend the Constitution, they would and should be met with a resounding response that he has no such authority.

That is not what he proposed, of course, though the notion that birth on U.S. soil is alone sufficient to be granted automatic citizenship has become so conventional that many have wrongly concluded otherwise. The Fourteenth Amendment’s citizenship clause, adopted in 1868, actually has two components, not one: birth on U.S. soil, and being subject to the jurisdiction of the United States.

Here’s the actual text: “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.” (Emphasis added.)

Some read the phrase, “subject to the jurisdiction,” to be synonymous with “subject to the laws,” and therefore conclude that everyone born in the U.S. (with the small exception of children born to foreign diplomats) is automatically a citizen.

But that is not how those who drafted and ratified the Fourteenth Amendment understood it. For them, being subject to the laws was synonymous with being subject to the “partial” or “territorial” jurisdiction of the United States. Anyone on U.S. soil is of course subject to our laws.

Sen. Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, noted at the time that “subject to the jurisdiction” of the United States meant subject to its “complete” juris­diction, “[n]ot owing allegiance to anybody else.” The clause therefore mirrored and constitutionalized language that was already in the 1866 Civil Rights Act: “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.”

Thomas Cooley, one of the preeminent constitutional law writers of the 19th century, agreed. As he noted in The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

And as the Supreme Court noted in the 1872 Slaughter-House Cases, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

In the 1898 decision known as Wong Kim Ark, the Supreme Court held that the children of parents who were lawful and permanent residents in the United States were citizens, but it has never decided that the children of temporary visitors, much less the children of those unlawfully present in the United States, are citizens.

Children born to parents who are subject to the complete jurisdiction of the United States are automatically citizens because their parents have already consented to be part of the American political community, and the American political community has consented to their membership. That is not true of those who are extended the privilege of temporarily visiting this country, and certainly not true of those who have never been granted permission even to enter. To argue otherwise is to attack the foundational principles of American political community embodied in our Declaration of Independence.

To allow individuals in the country illegally to demand citizenship for their children is to change such bilateral consent into a unilateral one, which destroys the notion of consent, undermines the rule of law, deprives Congress of its power to set naturalization policy, commits an injustice against the current citizens, and threatens the very idea of sovereignty. We should applaud President Trump for proposing to take this first step to set us back on the correct, constitutional course.

Another take on the 14th Amendment