Donald Trump

Trump vs. the Constitution

The misguided attack on birthright citizenship.


Donald Trump
Todd Krainin

On March 27, 1866, President Andrew Johnson sent a message to Congress vetoing the landmark civil rights bill it had just passed. Among the provisions "which I cannot approve," Johnson wrote, was the first section, which stated, "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."

Not only would this grant of birthright citizenship make citizens out of "the entire race designated as blacks," Johnson protested, it would also make citizens out of "the Chinese of the Pacific States, Indians subject to taxation, [and] the people called Gipsies." He wouldn't sign it.

So the Republican-controlled 39th Congress passed the Civil Rights Act of 1866 over the president's veto. As Sen. Lyman Trumbull (R–Ill.), the bill's primary author, declared from the Senate floor, "the child of an Asiatic is just as much a citizen as the child of a European." Several months later, that same Republican Congress passed the legislation that became the 14th Amendment to the U.S. Constitution, which, among other things, declared, "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." Upon ratification in 1868, the 14th Amendment's Citizenship Clause enshrined the principle of birthright citizenship in the text of the Constitution. At the same time, it overturned the U.S. Supreme Court's notorious 1857 decision in Dred Scott v. Sandford, which held that persons of African descent could never be U.S. citizens. It was a magnificent achievement for the young Republican Party.

Today, birthright citizenship is again under fire, only this time the attacks are coming primarily from the party that first put the guarantee into place. In mid-August, GOP presidential frontrunner Donald Trump vowed in an immigration-policy white paper to "end birthright citizenship," which he claimed was the "biggest magnet for illegal immigration" (see "Anchor Babies Aweigh," page 24, for the dubious veracity of that assertion). Trump then said on Meet the Press that in addition to somehow preventing future children from enjoying 14th Amendment recognition, he would deport current U.S. citizens if their parents were illegal immigrants.

Where the reality TV star led, the other candidates soon followed, with Ben Carson, Ted Cruz, Mike Huckabee, Rand Paul, Rick Santorum, Bobby Jindal, and Scott Walker all coming out in favor of limiting the practice in some way. Jeb Bush, Marco Rubio, Carly Fiorina, Lindsey Graham, and Chris Christie were also critical. Among the top 14 contenders, only John Kasich and Rick Perry were unequivocal in their support for what the 14th Amendment grants, and the latter dropped out of the race in September.

"I don't think they have American citizenship," Trump told Fox News host Bill O'Reilly, in reference to the U.S.-born children of undocumented immigrants. "It's not going to hold up in court, it's going to have to be tested."

But if the courts follow the Constitution, Trump's test will surely fail. That's because the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

'No Rights Which the White Man Was Bound to Respect'

The story of birthright citizenship and the 14th Amendment begins back in 1833, when an army doctor named John Emerson purchased a slave named Dred Scott in St. Louis, Missouri. Over the following decade, Emerson's job took him and his new slave to various places around the country, including the free state of Illinois and the free territory that would later become the state of Wisconsin. In 1846, back in slave-state Missouri, Scott attempted to buy his freedom from Emerson's widow (the doctor had died in 1843). After she refused to sell, Scott initiated the legal proceedings that would eventually add his name to the annals of American history.

Dred Scott had a powerful legal argument on his side: When a master takes a slave to live on free soil, the master has emancipated that slave. The lower courts agreed but the Missouri Supreme Court sided with the slaveowner, prompting Scott to initiate a new lawsuit in federal court. In 1857 the U.S. Supreme Court stepped in and rendered its judgment on his fate.

"The question is simply this," declared Chief Justice Roger Taney in Scott v. Sandford. "Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States." In other words, was Dred Scott eligible for U.S. citizenship and thus eligible to bring suit in federal court?

Taney thought not. Black Americans, Taney declared, were "beings of an inferior order" who could never attain U.S. citizenship under any circumstances. "They had no rights which the white man was bound to respect."

To say that Dred Scott ignited a firestorm in anti-slavery circles would be putting it mildly. It was a "devilish decision," thundered the abolitionist leader Frederick Douglass, a "judicial incarnation of wolfishness." Radical Republican Thaddeus Stevens, a congressman from Pennsylvania, was equally apoplectic. The Court's infernal judgment, Stevens said, "damned [Taney] to everlasting fame; and, I fear, to everlasting fire." Nine years later, after the last shots of the Civil War rang out, Stevens and his fellow Republicans set out to amend the Constitution and right Taney's wrong.

Section One of the 14th Amendment is perhaps best known today for its guarantee of individual rights against infringement by state and local governments. Drafted primarily by anti-slavery Republican Congressman John Bingham of Ohio, it reads, "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."

Those words bound the states to respect a broad range of fundamental rights, including those explicitly spelled out in the Bill of Rights, such as freedom of speech and the right to keep and bear arms, as well as certain unenumerated rights, such as the right to economic liberty, which Bingham described to the House of Representatives as the "constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." The legal battles inspired by this constitutional provision have been shaping American law ever since Reconstruction.

Before the 14th Amendment got around to the business of rights, however, it settled the fundamental issue of citizenship once and for all: "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." Those words, which overturned Dred Scott and made citizens of all black Americans, were introduced by Republican Sen. Jacob Howard of Michigan, a member of the Joint Committee on Reconstruction and floor manager of the 14th Amendment. "This amendment I have offered," Howard told the Senate, "is simply declarative 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."

'Subject to the Jurisdiction Thereof'

Which brings us back to the modern day controversy over birthright citizenship. According to critics like Trump, Sen. Howard's language cannot be read to support birthright citizenship for the U.S.-born children of illegal immigrants. "If you speak to some very, very good lawyers—and I know some would disagree, but many of them agree with me," Trump has said, "you're going to find they do not have American citizenship."

It's easy to dismiss Trump as a clownish celebrity, but he does have some influential lawyers on his side of this debate. One of them is Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit. "We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children," Posner wrote in a 2010 blog post. "That abuse provides an argument for abolishing birthright citizenship." Yet Posner also conceded that "a constitutional amendment may be required to change the rule."

Also notable: conservative legal icon Ed Meese, who famously served as attorney general under President Ronald Reagan. Meese's views on birthright citizenship were spelled out most forcefully in a 2004 friend-of-the-court brief submitted to the Supreme Court in the case of Hamdi v. Rumsfeld. At issue was whether Yaser Esam Hamdi, an American-born militant captured fighting alongside the Taliban in Afghanistan, could be held indefinitely as an "enemy combatant," or whether he must instead be afforded the same constitutional protections as any other natural-born American citizen, including habeas corpus.

In Meese's view, Hamdi was never a U.S. citizen in the first place because his Saudi Arabian parents were only residing in the U.S. on a temporary work visa when he was born. Shortly after the child's birth, the family returned to Saudi Arabia, where Hamdi grew up. "Mere birth to foreign nationals who happen to be visiting the United States at the time, as was the case of Hamdi," Meese declared, "is not sufficient for constitutionally-compelled citizenship."

To support this claim, Meese pointed to the text of the 14th Amendment. "The 'subject to the jurisdiction' provision must," he told the Court, "require something in addition to mere birth on U.S. soil," or else the provision would be redundant. For Meese, that "something" could be just one thing: Only the children of native-born or naturalized citizen parents can automatically qualify for U.S. citizenship. In other words, citizenship accrues by blood, not by place of birth. Notably, not a single member of the Hamdi Court endorsed Meese's position.

Meese is right that the 14th Amendment does "require something in addition to mere birth." But Meese is wrong about what that something is. As Sen. Howard explained to the Senate back in 1866, the Citizenship Clause "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."

Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens residing on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments.

By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. law or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.

Howard listed one final exception. The children of Indians, he explained, were not subject to U.S. jurisdiction because Indian tribes, although they resided on U.S. soil, "always have been in our legislation and jurisprudence, as being quasi foreign nationals." In other words, because Indian tribes were treated as independent sovereigns by the U.S. government, the U.S.-born children of tribal members were not covered by the Citizenship Clause. That status changed in the early 20th century when federal law stopped treating Indian tribes as the equivalent of sovereign foreign countries.

'They Shall Be Citizens'

This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment. For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican with ties to President Andrew Johnson. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."

In short, both the supporters and the opponents of the Citizenship Clause understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.

Three decades later, the U.S. Supreme Court gave its stamp of approval to this original understanding in United States v. Wong Kim Ark (1898), in which the Court affirmed the U.S. citizenship of a man born to Chinese immigrant parents in San Francisco who temporarily left the U.S. in order to visit China and was nearly denied re-entry due to the xenophobic Chinese Exclusion Act.

Much like today's undocumented immigrants, Wong Kim Ark's parents were outside the realm of U.S. citizenship. In fact, as persons of Chinese heritage, they were permanently barred from it by the racist terms of the Naturalization Act of 1790, which restricted U.S. citizenship to whites only. Yet despite their status as unwelcome non-citizens, the Supreme Court readily affirmed the birthright citizenship of their U.S.-born son.

Surprisingly, some modern foes of birthright citizenship have tried to cite this case in their favor. Sen. Rand Paul, for example, recently claimed that birthright citizenship "hasn't really been completely adjudicated" because Wong Kim Ark is not "a direct Supreme Court case on people who were here illegally, whether or not their kids are citizens."

But Paul has misunderstood the Court's ruling. As James C. Ho, a respected conservative legal scholar and former clerk to Justice Clarence Thomas, has pointed out, Wong Kim Ark's "sweeping language reaches all aliens regardless of immigration status" (as does the language of the 14th Amendment). Even Ed Meese has conceded that Wong Kim Ark cuts against him. In his Hamdi brief, Meese urged the Court to overturn this "erroneous" precedent.

In any case, the judgment in Wong Kim Ark speaks for itself. "The Fourteenth Amendment," the Court held, "affirms the ancient and fundamental rule of citizenship by birth within the territory, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."

That original understanding has held sway in American law ever since, and rightfully so.

Most Republicans claim to revere the Constitution. Yet when it comes to the issue of birthright citizenship, far too many Republicans, from Ed Meese on down to Donald Trump, seem willing to ignore the text and history of the 14th Amendment. Not exactly a reassuring indication of the GOP's fidelity to originalist constitutional principles.

NEXT: Obama's Cynicism Just Screwed Over Undocumented Latinos Big Time

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  1. Two falls out of three?

  2. I’ll never cease to be annoyed by the subset of libertarians who essentially don’t believe in the legitimacy of the nation-state.

    1. Exactly what I was thinking. It is a complete misunderstanding of the world and the notion of freedom of movement, played out through some unfiltered concept of no-exceptions open-borders policy. But it denies context and therefore is entirely unreasonable.
      What point having a country at all if you aren’t going to define why the country exists and to what extent that purpose envelopes. Sure, seek to promote what your country stands for beyond your borders if you see those principles are worthy, but define a border and be specific that ‘beyond this line’ is where our government protections begins and beyond it is where our liability to be duty bound for anything other than a direct national interest ends.
      If you aren’t going to acknowledge, define and defend national sovereignty, than being a nation at all is irrelevant. And if all one has to do to circumvent all other means to be deemed worthy of citizenship is for their mother to have snuck across a border in the 9th month of pregnancy, than we might as well handle immigration by lotto and look the other way whenever an enemy of our principles happens to win.

    2. I’ll never cease to be annoyed by those who claim to believe in freedom, liberty, and the non aggression principle, while supporting a violent coercive state which in order to exist, the aforementioned can not.

  3. “Citizenship Clause “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”

    It looks to me like there are four groups here.
    1. foreigners
    2. aliens
    3. who belong to the families of ambassadors
    4. foreign ministers

    And I quite agree. The aforementioned should not be given birthright citizenship.

    1. Exactly. Those groups have no real connection to the US other than having the timing to drop a baby on American soil. But open borders nuts are desperate to cling to the false idea of anchor babies.

    2. English comprehension fail.

  4. I make up to $90 an hour working from my home. My story is that I quit working at Walmart to work online and with a little effort I easily bring in around $40h to $86h? Someone was good to me by sharing this link with me, so now i am hoping i could help someone else out there by sharing this link… Try it, you won’t regret it!……

  5. Given the number of hit pieces on republics. Candidates, a Reason is effectively becoming an instrument to elect a democrat president. Ironically, Nick and the gang still won’t be invited to the cool kids parties. So it’s all in vain.

    1. It’s amazing, isn’t it?

      We get it, there’s isn’t a true libertarian candidate running for office. Boo hoo. But if you’re choosing between a party that is generally friendly towards libertarian values and is about 60% there on most issues, versus a party that is openly socialist and doesn’t even pretend to respect the constitution anymore — what’s the issue?

      Why, because the democrats want to legalize pot and open the borders? Guess what — libertarians aren’t going to get credit for that shit, and the media establishment is still going to hate you.

  6. Wow “reason”…what part of “not subject to any foreign power” do you nitwits not understand? All of it, apparently.

    Are citizens of Mexico “subjects” of a “foreign power”? By gum, yes, yes they are.

    End of argument. You lose.

    Y’all ought to change the name of this site from “Reason” to “Disingenuity”.

    If I wanted to be lectured to by leftist liars, I’d go read the Mainstream Media.

    1. What part of the 14th Amendment contains that phrase? It does not convey citizenship on those “not subject to any foreign power,” but rather does so on those “subject to the jurisdiction” of the United States. If illegal aliens are not subject to the jurisdiction of the U.S., then how can we arrest those who commit crimes, including the crime of improper entry? Unless you are granted diplomatic immunity, you are subject to the jurisdiction of the U.S. while on U.S. soil, plain and simple.

      1. This shallow understanding of “jurisdiction” was not the meaning of the word as understood by the authors of the 14th Amendment and they said as much at the time. In fact, everyone who is present in our territory is under the (local, territorial) jurisdiction of the US. Diplomatic immunity is a courtesy that is extended to promote smooth relations between nations. The host nation agrees to waive detention, prosecution, or punishment for those with “immunity,” but can rescind that waiver if the crimes in question are especially heinous, if diplomatic ties are severed, or for other reasons. Here is the difference between under local jurisdiction and being “subject to the (full) jurisdiction thereof”: If a US citizen lives abroad and works for a foreign employer, the IRS attempts to collect taxes on his foreign wages because he is fully subject to US jurisdiction, wherever in the world he goes. If a Canadian comes to the US, we assert authority to tax him for pay he gets from his American employer while working in the US. But if he then goes to London and works for a while, we cannot tax his money earned there from a British employer. When he is in the US, he is under our territorial jurisdiction. But once he leaves US territory, he is not subject to our full jurisdiction, and so the IRS cannot touch his foreign earnings, as much as they might want to.

  7. If a child is born on U.S. soil, and that child’s parents don’t happen to be foreign nationals, diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.


    “Not subject to any foreign power,” is pretty straightforward – “subject to the jurisdiction thereof,” is just as straightforward.
    Both mean, to put it bluntly, “if your parents are citizens of a foreign country, so are you.”

  8. I get it that some, maybe most, Reason editors do not like Trump–their reasons why are less clear and seem not to account for the fervor. Case in point is this article; makes some decent legal arguments. Easily countered, as some of the comments attest. That’s why cases go to court for decisions.
    But the article is seriously marred by several gratuitous swipes at Republicans. The swipes are, I’m sure, amusing to someone who is not well versed the lore of republicanism, but detract significantly from the power of the article. Giving opponents of your argument opportunities to counterpunch at irrelevant but snide comments is not a good tactic for keeping the focus on your “reasoned” arguments.

  9. You fail to make a distinction between “subject to the jurisdiction thereof”, and “UNDER the jurisdiction thereof”. Take the latter… a visitor here from, say, France, is staying here for three months on a visitor’s visa. Whilst here, he is “under the jurisdiction thereof”, meaning he must abide by the laws of this country, and of the state and lesser jurisdictions in which he finds himself. He cannot claim prosecutional immunity from, say, driving at 100 mph in a posted 70 zone, nor cah he pee on the sidewalk in downtown New York as he could have back in Paris. He must have insurance to cover the car he drives, and cannot sell horsemeat in a farmer’s market stall intended for human consumption as he can in Lys…… however, he is NOT “subject to the laws thereof” when it comes to rights and privildeges of citizenship or even permanent residence. He cannot register to vote, cannot buy o rpossess firearms as a non-resident, He cannot serve in the millitary and likely could not even obtain entry onto a military base.

    1. Any children born to him whilst here on a temporary visa will be no more “subject to the jurisdiction thereof” than e is. IRS regulations do not apply, he is blocked from having a SOcial Security account, and, unless opened as a foreigner wiht extra paperwork, he likely will not even be able to open a regular bank account.. no SSN, remember? He cannot work or conduct business, except perhaps in limited fashion as an agent of a French based business. He cannot form a corporation, own a US registered vessel or airlplane, He is not “subject to the jurisdiction thereof” and thus cannot function as someone who is… nor can his children.

      Compare this man to his brother, who gets a permanent resident visa before coming.. or gets it after his arrival. HE is now “subject to the jurisdiction thereof” and, though he does not enjoy the full rights of a citizen naturalised here, he DOES enjoy most of the rights denied his brother above.. bank account, work, own property, business, US registered vessel, Social Security account, own firearms, etc HIS children, born here or on his visa when he get it, WILL be “subject to the jurisdiction thereof”. Minor children at the time HE gains naturalised citizenship status, will also become full citizens. Adult children at that time will have the option to naturalise themselves… ofte done at the same time the parents do.

      1. THIS is the distinction and meaning of the term “subject to the jurisdiction thereof”, and it DOES indeed exclude those born here whilst their non-resident parents, still subject to the jurisdiction of their native land, the land of their citizenship. happen to be here temporarily, “under” but not “subject to” the jurisdiction thereof.

        “Birthright citizenship” MUST be ended… consider what has been happening in England, France, Holland, etc, and now Australia….. and here. Tens of millions of undocumented foreign invaders taking up illegal residence here, freeloading off OUR hard work and resources, no intention of assimilating, in fact fighting tooth and nail at every turn to establish their own foreign beachheads within our shores, and the borders of the other nations mentioned above…. and intending to stay her,e outbreed we who are here and nowhere else to go, and claiming the “right” of their children born here by virtue of their lawbreaking to become full “citizens”…. this cannot end well.

        1. Nearly every one of us are here because our ancestors immigrated from somewhere else…… with the exception of one Chrokee Indian who married into our lineage in the mid-1800s in Minnesota Territory, all on both sides of my family were immigrants from other countries. But they ALL came here, and the Cherokee married into the family, with the intent to become functional parts of the communities where they were, and build together a culture that would prosper, benefit many, leave much to their posterity as legacies… and since about 1610, this has happened. Nor will it cease. Birthright citizenship, or rather the charade so named, flies hard against this. It brings chaos, ruin, decline, poverty, conflict…..

          1. That sounds pretty persuasive to me. It does not, however, affect my support for the idea of birthright citizenship. I agree with Mr. Root that Mr. Trump’s claim that it is the “biggest magnet for illegal immigration” is rubbish, and I see no harm, and some benefit, in continuing it. The “Anchor Babies Aweigh” article Mr. Root links to provides, I think, persuasive evidence of soundness of my conviction. I should add that I am the grandson of immigrants from the then Austro-Hungarian Empire who would not have been able to enter this country legally if the present laws had been in place, and toward whom all the vitriol now directed at ‘illegal aliens’ were directed in spite of their legal status. And yet, they enriched this country, as on balance I trust current immigrants, regardless of legal status, are doing and will continue to do.

    2. John C. Eastman, a professor at the Fowler School of Law, Chapman University, wrote a letter to the Wall Street Journal recently that supports your position. It reads in part:
      “A person must be born in the U.S. and subject to its jurisdiction, according to the text….the latter phrase meant subject to the “complete” jurisdiction, “[n]ot owing allegiance to anybody else.” As Sen. Jacob Howard explained at the time, the Citizenship Clause excludes not only Indians but “persons born in the U.S. who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” In other words, the phrase didn’t mean what they called “partial” or “territorial” jurisdiction such as applies to “sojourners” who are mere temporary visitors, and it certainly didn’t apply to those who were unlawfully present in the county.

      “This [is] a reflection that “jurisdiction” has two different meanings. Visitors to the U.S., including illegal immigrants, are subject to our laws?our territorial jurisdiction?while present within our borders, but they are not thereby subject to the more complete political jurisdiction intended by the Fourteenth Amendment.”

      1. The sneaky little [or] you added completely changes the meaning of the text. Its not a list of four items. its a list of two items with two conditions on those items.

  10. Can we all also agree that there is not simply one way that is correct, but it can be debated, discussed, and agreed?
    The 14th amendment was written at a time when the populace was not nearly as mobile as it is today. The concept of frequent border crossers was probably not a concern at the time.
    Thus, it is a very reasonable thing to say “hey, maybe we should have a fresh discussion about this ’cause it doesn’t seem to be working”. Instead, there is name calling and suggestions of racism when you bring up the idea of changing anything.
    We do all understand that other countries do citizenship in very different ways, right? In the Middle East, citizenship has nothing to do with where you were born but only to do with your ancestry. I don’t like that concept either, but don’t call me a racist for suggesting there might be a different way than allowing anchor babies.

  11. Can we all also agree that there is not simply one way that is correct, but it can be debated, discussed, and agreed?
    The 14th amendment was written at a time when the populace was not nearly as mobile as it is today. The concept of frequent border crossers was probably not a concern at the time.
    Thus, it is a very reasonable thing to say “hey, maybe we should have a fresh discussion about this ’cause it doesn’t seem to be working”. Instead, there is name calling and suggestions of racism when you bring up the idea of changing anything.
    We do all understand that other countries do citizenship in very different ways, right? In the Middle East, citizenship has nothing to do with where you were born but only to do with your ancestry. I don’t like that concept either, but don’t call me a racist for suggesting there might be a different way than allowing anchor babies.

  12. Can we all also agree that there is not simply one way that is correct, but it can be debated, discussed, and agreed?
    The 14th amendment was written at a time when the populace was not nearly as mobile as it is today. The concept of frequent border crossers was probably not a concern at the time.
    Thus, it is a very reasonable thing to say “hey, maybe we should have a fresh discussion about this ’cause it doesn’t seem to be working”. Instead, there is name calling and suggestions of racism when you bring up the idea of changing anything.
    We do all understand that other countries do citizenship in very different ways, right? In the Middle East, citizenship has nothing to do with where you were born but only to do with your ancestry. I don’t like that concept either, but don’t call me a racist for suggesting there might be a different way than allowing anchor babies.

  13. Ahh, the 14th amendment, better known as the “Magic Amendment” for the way 20th century progressive judges have used it to magically take unconstitutional authority from the States and increase the size and scope of the federal government. Goodbye federalism; hello Nationalism.

    In the more than half century before 1925, the 14th amendment meant exactly what it said, “No State shall..” and then amazingly, it listed what no State shall. That short list extended no new rights, and everything on it could already be found in the body of the federal Constitution, with only one reference to the federal Bill of Rights, which was a portion of the 5th amendment.

    It wasn’t until Justice Sanford, writing for the majority in Gitlow v. New York, arbitrarily decided that the 14th Amendment would no longer mean what it had meant to the members of Congress that agreed to it, the States that had ratified it (albeit questionably), or to every supreme Court since 1868, when he wrote “For present purposes we may and do assume…”

    Goodbye State Constitutions.
    Goodbye State Bills of Rights.
    You no longer have meaning.
    We were now one monolithic blob of a Nation

    The quotes included can be rebuffed. Jurisdiction is the key requirement and those that agreed to this amendment clearly knew what it meant. This article is misguided at best. #CaseMethodTrainingWorksAgainstLiberty

    1. This gets a huge thumbs up!
      The number of contentious rulings that have arisen since the expanded reading of this amendment should be enough for anyone to realize it it not a productive, in fact it is a very destructive, addition to our founding document.
      The fourteenth was ratified in a very emotional time, following a massively destructive war had ravaged the nation.
      No good decisions are made when in a highly emotional state and this one could not have done more to tear apart our society than anything that was intended to do so.
      Can anyone point to a recent decision, based on the fourteenth amendment, that hasn’t caused unending turmoil?

  14. I disagree about the “Subject to the Jurisdiction” clause. First, Howard’s list of exceptions says “foreigners, aliens, …” It is a completely reasonable reading of that sentence to see the following “ambassadors and foreign ministers” clause as a separate subclass within the larger class of “foreigners and aliens” who would not qualify for birthright citizenship under the 14th Amendment.

    Second, diplomatic immunity is a COURTESY, mutually extended between countries. There is no hard law that says that diplomatic immunity is inevitably and automatically granted to diplomats and foreign ministers. It can be revoked (although doing so and prosecuting someone afterwards can have severe diplomatic consequences). It can be revoked, for example, when there is good reason to suspect a diplomat of especially heinous crimes. It’s a shaky basis for determining whether or not someone is under “US jurisdiction.” In fact, anyone in the US is ALWAYS under “local jurisdiction,” but the courtesy of diplomatic immunity is extended to help keep peace between nations.

    (continued in reply comment)

    1. (continued from above)

      Third, and even more importantly, the modern-day understanding of “jurisdiction” is not the same as in the days when the 14th Amendment was written. The authors of that amendment used the word in its full sense — the sense that the IRS uses today, for example, when claiming that US citizens owe taxes on money they earn from foreigners when living abroad, or the sense in which a US citizen is subject to jury duty but non-citizens are not. For 14th Amendment purposes one is “subject to the jurisdiction” of the authority to which one owes or has sworn one’s allegiance. Aliens have NOT sworn allegiance to the US, and may have sworn (or owe) their allegiance to a foreign power; this is particularly true of diplomats or other representatives of foreign governments, but it is no less true of visitors to this country, or those who come here without permission, in violation of our immigration laws. Freed negro slaves were presumed to be subject to the (full) jurisdiction of the US because 1) they were born here; 2) they owed no allegiance to a foreign power.

      Birthright citizenship, as Root defends it here, is a fabrication of faulty reasoning on the part of the Supreme Court, and was neither intended by the 14th Amendment’s authors, nor consistent with commonsense practice, in the 19th century or now. I am no fan of Trump and his wall, but he’s right about this, and the Supreme Court’s mistake needs to be corrected.

      1. I especially love how the exception includes “invading soldiers” as though only those who have signed up for a foreign military are to be included.
        A good argument can be made that these civilians are also an invading force, though, as with such groups as Al Qaeda or ISIS, are not affiliated with any, particular national army.

  15. My issue with birthright citizenship as it is done now is that is seems incongruous with our immigration policy and more suited for a nation with largely open immigration. It creates bad incentives for people. There have been people that have presented arguments from the time of the passage of the 14th Amendment that show that some people believed that the ‘under jurisdiction’ statement was meant to exclude people who were not lawful residents (perhaps permanent residents) of the United States. It just seems like another situation where we create problems by having mixed incentives coming from the government.

  16. Modern Republicans don’t like the 14th amendment?


    1. (Non-modern) Republicans approved the 14th Amendment over the objections of Democrats. Not all modern Republicans want to further restrict citizenship eligibility. Honest and serious debate about whether 14th amendment case law is “settled” need not be a partisan issue.

  17. Rand Paul is right, the 14th Amendment hasn’t been fully adjudicated. Native Americans born in the US were not citizens until an act of Congress in 1924 and again in 1940. The constitutionality of the act making Native Americans citizens was never challenged. Which brings up the question: Is the “subject to its jurisdiction” clause subject to Congressional legislation? The Woo Kim Ark SCOTUS decision established birthright citizenship in the absence of any specific legislation restricting it. And recent SCOTUS decisions held Congress has no constitutional power to revoke birthright citizenship. A citizen could voluntarily give up citizenship known as “expatriation”. The government fee for expatriation is now $2500. So, once becoming a citizen, Congress cannot undo it. However, the possibility of Congressional restrictions on birthright citizenship via the “subject to jurisdiction” clause for future children not yet born in the US., would certainly be challenged in court with no certainty the restrictions would be struck down. What is more interesting is that the US government considers birthright citizenship automatic, in the absence of any affirmative act such as voting or passport application, that attaches citizenship duties to a person whether he/she wants them or not. And because birthright citizenship is automatic at birth, children are considered legally incapable of refusing citizenship.

  18. 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.

    So that if they don’t reside in a State – where residency is a *legal* status – this clause doesn’t apply to them. Residency in a State, and similarly being subject to the jurisdiction of the United States, are presuppositions of citizenship by birth.

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