The Birthright Citizenship Debate
By James D. Agresti
July 24, 2018
Michael Anton, a former national security official in the Trump administration, recently argued in a Washington Post op-ed that the current federal practice of granting citizenship to the children of illegal immigrants “is an absurdity—historically, constitutionally, philosophically and practically.”
A number of media outlets have published fiery rebuttals declaring that Anton is dead wrong. They claim that the 14th Amendment to the U.S. Constitution gives citizenship to all children born in the U.S., except for the children of diplomats.
However, the legislative history of the 14th Amendment proves that it does not award citizenship to the children of illegal immigrants or anyone who is not legally and permanently residing in the United States.
In 1866, shortly after the Civil War ended and slavery was abolished, a bloc of Congressmen called the “Radical Republicans“ passed a civil rights law to ensure that African Americans had the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….” This law applied to former slaves but not to foreigners, and thus, it stated that:
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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property….
To guarantee that the Civil Rights Act of 1866 was constitutional, the Radical Republicans fought for and secured passage of the 14th Amendment to the U.S. Constitution in 1868. This amendment mirrors key elements of this act and reads in part:
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.
The sentence above is known as the “birthright citizenship” clause, and under the current prevailing interpretation of it, children born in the U.S. to illegal immigrants, visitors, and tourists automatically become U.S. citizens. Hence, they:
- are eligible for all state and federal welfare benefits, such as food stamps, housing, home energy, child care, and health insurance.
- can sometimes serve as shields to prevent their parents from being deported.
- can sponsor their relatives to become legal permanent residents and U.S. citizens.
In 2009, Pew Research estimated that 73% of the children of unauthorized immigrants were U.S. citizens.
The Pivotal Evidence
The U.S. Senate record of debate on the birthright citizenship clause shows that Republican Jacob Howard proposed it on May 30, 1866. In his opening statement about this matter, he said:
This 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.
The senators then discussed the meaning of the proposed language and voiced conflicting views about it. With regard to the phrase “subject to the jurisdiction,” Howard explained that:
the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power 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. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction.
As ratified, the birthright citizenship clause of the 14th Amendment contains the exact words proposed by Howard. Hence, there can be little doubt that it means exactly what he said it means.
Among the multitude of news outlets and websites that have published rebuttals to Anton, all of them ignore the fact that the sponsor of the birthright citizenship clause said that it applies only to people under the “full and complete jurisdiction on the part of the United States … in extent and quality as applies to every citizen of the United States now.” This is the most significant evidence in this debate, because it shows that this clause excludes the children of foreigners.
Many of the rebuttals argue that when Howard said this provision “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,” he only meant foreign government officials. For example, Daniel W. Drezner, a professor of international politics at Tufts University, claims:
Anton wants the reader to believe that Trumbull is listing distinct categories of individuals. What Trumbull was actually doing was listing synonyms to describe the same category of individuals, namely the children of foreign officials.
First, Drezner misidentifies the speaker of this statement as Lyman Trumbull, but the Senate proceedings show that it was Jacob Howard who said this. Second, Drezner’s argument is belied by the facts above, namely that:
- the key purpose of the 14th Amendment was to constitutionally support the Civil Rights Act of 1866, and that law excluded from citizenship those who were “subject to any foreign power….”
- Howard said that this clause “is simply declaratory of what I regard as the law of the land already….”
Drezner and others quote various snippets from the U.S. Senate debate as if they determine the meaning of the birthright citizenship clause, but the full record of the discussion reveals that the senators expressed differing views about it. Thus, by cherry-picking quotes from this dialogue, one can make a variety of claims about what it means. In the end, the definitive authority on this issue is Jacob Howard, who proposed and clarified the words that became a part of the U.S. Constitution.
Based on a faulty interpretation of the 14th Amendment, the federal government is awarding citizenship to the children of nearly everyone who gives birth in the United States. As a result, they are entitled to receive welfare, vote when they become older, and obtain other benefits of U.S. citizenship. This includes the children of illegal immigrants, temporary residents, and even foreigners who are vacationing in the U.S.
The legislative history of the 14th Amendment reveals that the birthright citizenship clause was enacted primarily to protect the civil rights of African Americans. It does not grant citizenship to the children of anyone who is not legally and permanently living in the United States.
The intent and explanation of Mr. Howard is directly supported by our Oath of Citizenship which affirms our Alegiance to the United States and no other foreign government; completely explainable and needs reviewed by the USSC!
I completely agree with this interpretation, and have for years. The key phrase in the amendment is “and subject to the jurisdiction of.” Any foreign person in this country is bound by the laws, but is ultimately under the jurisdiction of their home country. This includes their children, whether brought here or born here. Any other “interpretation” departs from the letter of the law.
That’s an interesting explanation. I was wondering what jurisdiction meant in this context. Your phrasing makes sense to me.
Would you change your mind to learn that phrase was “clarified” in 1898 by the asupreme Court tonremove any referrence to ‘allegiance’ to the US, and thus removing any mention of parental names or even nationality?
Wong Kim Ark, 169 US 649. Also, all such ‘anchor babies are naturalized at birth.
They that come into our country illegally, are not “illegal immigrants”, “undocumented immigrants”, or “immigrants” of any stripe. They are by U.S. law, “illegal aliens”. To name them “immigrants” is to confer on them a quasi-legal status that they have neither earned or deserve.
True but Let’s not forget about the one million new foreigners allowed to move inyo the US legally every year, many, maybe most, never become US citizens. Their babies born here have no more right to citizenship than those born to illegal aliens. At the beginning, the only difference between the majority of the “legal” and the illegal group is simply the legality of their being here. The legal group have anchor babies, getting access to all welfare services exactly as the illegals do. Until the legal foreigners become legal US citizens, they should have no access to any of the rights/benefits/privileges NEVER meant for anyone but USA citizens. Any of these foreigners having a baby while here should mean nothing.
my preferred term is enemy invaders
Why has this never been clarified by the Congress or the Supreme Court?
One reason is that the Democrat Party wants to let all these “Illegal Aliens” in our country so that they will vote in their favor. They don”t care about the Middle Class people of all races, ethnicity, and what it is doing to the working class of America who have to fork over more money for taxes, living expenses, medical services, etc., to pay for many who aren”t coming to the USA to help our country but to do the opposite instead.
Excellent analysis of the 14th Amendment and the Civil Rights Act of 1866. I’m looking for one or more state legislatures to pass a law stating that children born in the US to non-US citizens are not themselves US citizens. Guessing it would quickly be challenged and move to the US Supreme Court. With the addition of Kavanaugh, I’m assuming this would be a great debate! Not sure of the outcome however, given the precedent.
The argument is based on the US VS Wong Kim Ark. In that case the parents were legal residents of the United States permanently domiciled there when Wong Ark was born. The US denied him entry back into the country later as an adult. He went to court and the ruling said because his parents were legal residents he was a citizen. The key is legal residents. This is the part they always leave out. The 14th amendment had been abused by both illegal aliens and lately the birth tourism trade. Trump is right in what he is doing. The American people have paid a dear price for this and it must stop.
Neither our congress nor our courts will ever agree on the interpretation of the amendment but, awarding our citizenship based on nothing but PLACE of birth is beyond stupid and degrades the value if our citizenship. But the only way to fix this permanently is a new amendment, or at least, a federal law, requiring citizen parents, regardless of birthplace. Unfortunately, Congress has no interest in doing this, and if it should ever happen, by the time it does, the foreigners will have control of our control. Today, we have at least 50+ million Mexicans living in our country along with unknown numbers of Hispanics from other nations. Population experts predict that, on our nation’s current path, in another couple of decades or so, Mexicans/Hispanics will be the largest group of people in the U.S., which will give Mexico and its citizens here enormous power over the USA.
What is wrong with that? Do you have anything against Hispanics?
In California we are having birthing vacations. Pregnant Asian women are coming to give birth in California, so their child is a citizen, then go back home and when the kids grow up they come back to USA to go to school paying resident rates and getting all the benefits a true citizen has. There were so many pregnant women staying in this new apartment complex until giving birth, the owners had to revise their rules to prohibit short term rentals.
Like the border, the issue of birth right for illegals or vacationers is something that has been debated for decades, yet Republicans and Democrats do nothing about it. Why is the question?
your question assumes either group cares about the country and its citizens, the only actual goal for most is the accumulation of wealth and power
there are actually very few republicans and the rinos work hard to keep them out
the dems [national] have become the party of treason
In 1866, there was no such thing as an illegal immigrant or illegal alien. There were no immigration laws on the books at that time. If you managed to make to our shores with the intent to remain here, you were an immigrant and thus, your children, born in our country were native born citizens of the United States. Virtually all court decisions subsequent have held this to be true.
The Supreme court has previously made a determination on that, in 1898.
169 US 649
Which was that any person, subject to the jurisdiction, born in the US was a citizen, by the clarification of ‘jurisdiction’ to hereafter mean simply birth in the territory of the US.
In answer to your statement of there being no immigration laws, why the Constitutional instruction to congress to ,establish an uniform rule of naturalization, or the Immigration Act of 1790 stating that children of American parents, born over the seas be considered natural born citizens of the US…which was rescinded soon after and replaced by the Act of 1795, natural born citizen definition never so reappearing in any form since.
Sorry, while the intent of Congress may be undeniably stated in the comments and debate leading up to ratification, the Supreme Court of the US, 169 US 649 said otherwise, in 1898! Horace Gray, in his ruling opinion offered that ‘Subject to the jurisdiction’ was clarified to mean only the territory of the US! Not the complete and absolute allegiance to it, Further, “if such allegiance was intended, it should have been so stated.”
As was also said by CJ John Marshall, in Marbury vs Madison, in his ruling opinion: “It cannot be said that any clause of the Constitution be without consequence, that a thing not mentioned cannot be inferred to be there.”
Additionally, the Constitution is only empowered to create citizenship by Naturalization. Art I, sect 8, cls 4.
America is the last country in the world that does not have restrictions on Birthright citizenship. Canada recently changed their law saying if you are born in Canada by non citizen parents, you are a citizen, but you return to your parents country until you are 18 and then can choose to bring your parents to Canada. The reason Canada changed the law? They stated the 11 million undocumented living in America and the reasons they came after the 1986 amnesty bill. Birthright tourism should not be a way for some “families” to jump the legal immigration line when it can happen by simply crossing our border illegally to have a child. This is an unnecessary magnet. This current law needs amended by Congress to make it clear.
So, what you’re actually saying is: if you come into this country legally, and then have a child, that’s OK? Even though you are not a citizen, your child is?
When the 14th was modified in 1898, immigration, on the scale and in the manner with which we are now threatened, was not a factor, and birthright citizenship was, and still is an essential factor in our defining of citizenship! That the 14th amendment, or at least the citizenship clause of it, was drawn up with one specific thing in mind, it would appear… citizenship of the recently freed blacks!
As it so chanced to happen, the Supreme Court fated to change a facet of the meaning of the 14th was originally intended to decide the citizenship of a Chinese man born in San Francisco of Chinese parents, deemed to be resident aliens, one Wong Kim Ark!
On this court sat Justice Horace Gray, at that time felt to be the preemminent scholar of all things Constitutional!
Interestingly, the 14th was to be a central feature in deciding Wong’s fate. Birthright citizenship got a thorough airing in Gray’s decision, if any current viewers are so inclined, 169 US 649.
Supposedly, going by precedent of Marbury v Madison in 1803, as mentioned earlier in this thread, it was held that ‘a thing not so mentioned, cannot be inferred to be there’, meaning the intentions of the authors or any such participants of the 14th Amendment. Thus, without any inferred guidence, Gray redefined ‘jurisdiction’ to mean the time honored definition of birth within a country, or the legal boundaries of the US, and any reference to allegiance to country, since there was no mention of any parental participation, nationality of the newborn could not be determined…Chinese or otherwise.
In so doing, he also removed another birthright provision, never intended to be encountered in legal definition…that being of eligibility for the Presidency of the US! As, born subject to the jurisdiction, as the authors of the 14th intended…in country and with the full allegiance to the US as gained from citizen parents!
If there is any misinterpretation of this clause of the 14th Amendment, it rests with the assumption that it was a mistake! There are other examples of the unmodified “subject to…” clause in the Constitution. Whether this ruling holds for them as well, or not, remains to be seen.
So, does it not matter that John Doe is an illegal alien here and Mary Jones is here legally on a green card, but neither are US citizens and whike here they are expected to obey our laws, no knowledge of the U.S. foundations or constitution nor allegiance to the US is required of either if them. Neither are subject to our constitution, our Bill of Rights, etc, and retain their citizenship and allegiance to their nations, and they can leave at any time without permission of the USA. So, how are they subject to the jurisdiction of the USA. They are not even allowed to vote here.
73% of the children of unauthorized immigrants were U.S. citizens.
And they have been here so long they are grown and voting for Democrats. To understand what happens then all we need to do it look at what California is becoming.
Birthright citizenship is the law. All discussion of effects and Senate records are irrelevant and ambiguous. The Ark decision is not. Read it.
The US Constitution would have to be amended to change this. Or, perhaps, a new SCOTUS decision overturning the Ark precedent. Hard to say which would be more unlikely.
Wrong. As the article documents, the legislative records are crystal clear. And these records, along with the text of the 14th Amendment, are the only things that genuinely are relevant.
The applicability of the Ark decision is questionable, as it did not deal with someone born to illegal immigrants or people who were on vacation to the United States.
A Constitutional Amendment is not needed. All that is needed is five competent, honest Supreme Court justices.
a simple solution no one will like
we agree the child is citizen [no it isn’t, but that gives the lefties something]
let her whelp, spay her and kick her out
there are lots of people wanting to adopt
orphanages can be good or bad, just like families