The practice of the U.S. government is to recognize all children born on U.S. soil as U.S. citizens. Illegal aliens have used this policy to anchor themselves in the U.S. as parents of citizen children. Although there have been proposals to change that policy since 9/11, or at least to deny illegal alien parents the anchoring strategy, the consensus view spanning the Left and Right alike is that the birthright citizenship policy should not be disturbed.
Birthright supporters often rest their position vaguely on the Constitution, or specifically cite to the 14th Amendment. But P.A. Madison posted this criticism of the Constitutional basis of territorial birthright in The Federalist Blog in 2005.
Alien Birthright Citizenship: A Fable That Lives Through Ignorance
Ever since the subject of Congress taking up Birthright Citizenship have we seen the power of ignorance at work through the mainstream media. It is difficult to find any editorial or wire story that correctly gives the reader an honest and accurate historical account of the Fourteenth Amendment in regards to children born to foreign parents within the United States. Most often the media presents a fabled and inaccurate account of just what the Citizenship Clause of the Fourteenth Amendment means.
Recent story lines go something like this: "Currently the Constitution says that a person born in this country is an American citizen. That's it. No caveats." The problem with these sort of statements other than being plainly false is that it reinforces a falsehood that has become viewed as a almost certain fact through such false assertions over time.
This is like insisting the sun rotates around the earth while ignoring the body of evidence to the contrary.
During the reconstruction period following the civil war the view on citizenship was that only children born to American parents owing allegiance to no other foreign power could be declared an American Citizen upon birth on U.S. soil. This is exactly the language of the civil rights bill of 1866: "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."
The author of the Fourteenth Amendment, Rep. John A Bingham (OH), responded to the above declaration as follows: "I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."
Already, before we get to the Fourteenth Amendment Citizenship Clause, we have the entire Congress declaring only children born to parents who owe no foreign allegiance shall be citizens. We also have the author of the Fourteenth Amendment declaring this is law of the land.
It just gets worse for advocates who want to either believe - or revise history to support their fable - that the Fourteenth Amendment somehow magically makes anyone born in the United States regardless of the allegiance of their parents a natural-born citizen.
Sen. Jacob Howard, who wrote the Fourteenth's Citizenship Clause believed the same thing as Bingham as evidenced by his introduction of the clause to the US Senate as follows:
[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Advocates for birthright citizenship for aliens either through ignorance, or deception, attempt to pretend "subject to the jurisdiction" means only one thing: location at time of birth. It does not, and never had such a meaning during the time period in question. The record of law is full of references to jurisdiction that had nothing to do with physical location. Take for example title XXX of 1875, sec 2165 where is states:
[Any] alien who was residing within the limits and under the jurisdiction of the United States...
Simply being on US soil (limits) does not automatically put you under US jurisdiction like some pro alien advocates would like to believe. Under the common myth of the meaning -- simply being within the limits of a State automatically places an alien under US jurisdiction for Fourteenth Amendment purposes. It does not as Bingham and Howard plainly makes clear as well as laws regarding the subject at the time also make clear.
So than, what exactly did subject to the jurisdiction mean? Sen. Lyman Trumbull, Chairman of the Judiciary Committee, framer of the Thirteenth Amendment told us in clear language what the phrase means under the Fourteenth:
[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Sen. Jacob M. Howard, responded to Trumbull's construction by saying:
[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
One might wonder why did Jacob Howard use the phrase "subject to the jurisdiction thereof" rather than the language of the civil rights bill of 1866 and 1870? The answer is simple: there was confusion over what a Indian’s allegiance might be and most everyone in Congress at the time did not want to give blanket citizenship to all Indians across the board.
In other words, it was feared by some that an Indian might be considered to owe no allegiance to any foreign power, and therefore, could become a citizen at birth. Since Indians were not under the direct jurisdiction of the United States (they were under the jurisdiction of their respected tribes) the language of the Fourteenth Amendment would disqualify them. This is why the language of the Citizenship Clause ended up different than the language of the civil rights bill of 1866 and 1870 and made more restrictive as to who could become a citizen by birth.
Myths can be difficult to dispose of, and birthright citizenship to aliens is no exception. Pro-immigration advocates will refer to the Supreme Court ruling U.S. v. Wong Kim Ark as a desperate attempt to keep the fable alive. The problem with relying on Wong Kim Ark is that it draws zero support from the Fourteenth Amendment. In fact, the ruling had nothing to with the Fourteenth Amendment at all, but everything to do with English Common Law, something the Fourteenth's Citizenship Clause had no connection because it was a virtue of "national law."
There are other significant problems with the Wong Kim Ark ruling, other than having no basis in Fourteenth Amendment text, intent and history that will never hold up under review -- and that is how will any court with a straight face attempt to reconcile the civil rights bill of 1870. Remember that civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.
You cannot simply revise he Fourteenth's Citizenship Clause to mean yes, it really was the intent of the Congress to grant citizenship to alien children born on US soil when the same Congress enacted law afterwards that did just the reverse. Try and explain why Congress would pass a Constitutional Amendment that grants citizenship to ANYONE born in the US and then turn around and pass a law that would deny automatic citizenship to aliens? Because you cannot, only leads us back to the to the exact construction of the clause for which it was intended and written to mean.
The Wong Kim Ark ruling is so badly flawed and irrelevant probably led to the US Supreme Court in 1982 to say they "had never confirmed birthright citizenship for the children of illegal aliens."
By far the most relevant Supreme Court ruling on the subject to date, and indeed, fully supported by the Fourteenth Amendment itself came in Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase "subject to the jurisdiction" requires "direct and immediate allegiance" to the United States, not just physical presence.
If pro-immigration groups or individuals want to continue in believing the Fourteenth Amendment grants citizenship to anyone born in the country regardless of their allegiance, fine. But to continue to insist the Fourteenth Amendment supports their fable is both feeble and a disrespect to American history.
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Comment posted anonymously:
The United States never granted territorial birthright by National Law. Aliens who gave birth to children within the United States were by National Law always alien. This remained true for most of the 19th and 20th century. Federal courts always upheld allegiance to the United States by the child's father in such controversies.
The question of Wong Ark did not involve any question of allegiance and therefore is a imporoper citation to support territorial birthright. National Law always trumped Common Law before the Supreme Court.
It is illegal by both 19th century National Law and under the 14th Amendemnt to bestow citizenship upon aliens under territorial birthright rule.
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