I’m amazed how it is that so many of today’s so-called “Constitutional Experts”, be they presidential candidates or TV talking heads seem to be anything but. Especially as far as our illegal immigration problem goes. Because while parts of Donald Trump’s immigration plan may raise serious constitutional questions, the part that has now launched a media firestorm—ending birthright citizenship for the children of illegal aliens— most certainly does not. The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal. So this is yet another area of our Constitution where those on the left, and a good many of those on the right, read only what they ‘want’ to read.
Now I freely admit that I’m about as far removed, as anyone can possibly get, from being an expert on the Constitution. As must be a goodly number of our media commentators who have continued to get this issue so completely, and so thoroughly dead wrong. And I was somewhat surprise to hear that even Fox News’s Judge Andrew Napolitano, whom I have always held in rather high regard because of what I thought was his apparent knowledge regarding our Constitution, has now said that the Fourteenth Amendment is “very clear,” and its Citizenship Clause commands that any child born in America is automatically an American citizen. On the contrary, not only is that’s not the law, it never has been the law. Come on, Judge!
Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen. This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. So after all these years is this federal law unconstitutional? No, it is not! The Citizenship Clause of the Fourteenth Amendment states as follows: “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.” Today’s debate can be said to turn on the six words, “subject to the jurisdiction thereof.”
As those familiar with history are no doubt well aware, the Thirteenth Amendment—which ended slavery—barely passed Congress because of the large number of Democrats who supported slavery, and it was only through the political genius and resolve of ‘Republican’ President Abraham Lincoln that the proposed amendment passed Congress in 1865. In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality.
It was the Civil Rights Act that included a definition for national citizenship the purpose of which to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “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.” However, nowhere does it say that anyone who is able to sneak across our border, and then able remain undetected in this country for any number of years automatically becomes a citizen of this nation. Now that may be how some of our politicians read it, but that doesn’t make it so.
That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment.
And it was then in 1884 that the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore are not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens. That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth.
The very simple fact is that these individuals are not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has. Which then begs the question, why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.
The position of many in our state-controlled media demonstrates quite clearly that they lack any serious knowledge regarding what our Constitution actually says about immigration, or anything else for that matter. As well, that seem to be quite ignorant of what most of us see as being very clearly spelled out in our immigration laws. This despite the fact that some of the greatest legal minds in this country have discussed this issue nearly ad nauseam. It’s just that no one has ever put any of them on camera to explain it. Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship.
Nor is rejection of birthright citizenship something this is limited to only we conservatives. For instance, it was Judge Richard Posner—a prolific scholar who, despite being appointed by Ronald Reagan, is a liberal judicial activist—who wrote in 2003 in Ofoji v. Ashcroft: 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. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but somehow I seriously doubt it. I would have to agree.
The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally, and literally is how it is read today even by those who should know better. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense. It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans.
Trump, if elected, could rescind Barry “Almighty’s” executive amnesty, but that executive order did not grant anyone citizenship, and it would be a steep uphill climb in court to try to take someone’s citizenship away. And if the children already here are American citizens, then they could never be deported. Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported, and that would most certainly have an impact on the pace of deportations.
Now I’m not going to do is sit here and make the claim that Donald Trump’s position on immigration hasn’t changed, and pretty drastically so, from his previous positions, just like his past support for socialized healthcare and abortion. After all, he has not yet explained why he changed his position on immigration, hence the reason that more than a few voters still do not trust that he sincerely holds to his current campaign positions. But that being said, none of that changes the legality of his immigration proposal. While parts of it may face legal challenges, the fact is that denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment.