We Should End Birthright Citizenship Whether Trump Wins Election or Not

One of the key aspects of the new immigration policy that Donald Trump proposed this weekend was to end birthright citizenship, the one rule that has served to create the “anchor baby” phenomenon drawing pregnant mothers to the U.S. from every corner of the world. This would be the right move for any president to make and it would be in keeping with the original intent of the Constitution and its requisite amendments.

Donald Trump came out with his plan to fix immigration on Sunday written with the aid of Alabama Senator Jeff Sessions. Along with appearances on the Sunday political talk show, Trump issued a new policy paper to codify his plan. If elected he says he would work to streamline the immigration process, triple the number of Immigration and Customs officers, require companies to hire only American citizens or legal immigrants by implementing the e-verify program, and he would end birthright citizenship.

Of the latter, Trump said that birthright citizenship (BC) “remains the biggest magnet for illegal immigration.”

Millions of immigrant women, pregnant or not, come here in order to have their child born on U.S. soil so that they can then claim citizenship for the child. This action has the benefit of giving cover for family members of that sudden “new citizen” to stay in the U.S. and to give those family members free benefits courtesy of the U.S. taxpayer.

Unfortunately, what we have now is a situation where the law considers someone a “natural born citizen” based solely on the physical location of their birth. If a child is born anywhere inside U.S. territory, that child is an automatic citizen. This might seem logical, but is actually a perversion of the ideas of the 14th Amendment to the U.S. Constitution. It has also become a loophole by which millions of greedy foreigners have grabbed hold of U.S. benefits they do not deserve.

Birthright citizenship should absolutely be eliminated regardless of who becomes president.

Many think that the 14th Amendment to the U.S. Constitution set up the automatic citizenship for people born inside U.S. territory, but that just isn’t true. How we’ve ended up with BC is simply via court precedent, not actual law. It has just become “accepted,” not officially codified.

In fact the 14th Amendment does not say that people born in U.S. territory are automatically a citizen.

The clause in question states the following: “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. 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.”

During the debate of the 14th Amendment in 1868 there were two concerns. One was making sure recalcitrant southern states just coming back into the union after failing to win separation in the great civil war could not oppress blacks and treat them as non-citizens. But a second worry was making sure American Indians didn’t necessarily benefit from sudden citizenship, themselves. So, while the writers of this amendment wanted to give citizenship to blacks, they wanted to avoid giving citizenship to foreigners–which Indians were considered because they owed their allegiance to their Indian tribe or nation, not the U.S.A.

This was not meant to be merely punitive–and therefore “racist” and something we should wish to correct–but was meant to assess to what a person owes allegiance. And this is the key question we need to understand.

The original drafters of the 14th Amendment were saying that a “citizen” is someone who holds no allegiance to another nation or government. Clearly the various American Indian tribes, many of whom were essentially at war with the U.S. in 1868, did not pledge their allegiance to the U.S.A. So, to give them automatic citizenship would have been a bit silly when at the time many had and were in the process of taking up arms against the country. Not only that but the various Indian nations were already recognized by U.S. law as foreign nations.

So, the 14th was not meant in any way to confer citizenship merely by locale of birth. It meant to confer citizenship based on the parents’ allegiance, or to what “jurisdiction” they are “subject to.” And this is where we come into the debate for today.

If a Mexican man and woman come to the U.S. to give birth to their child, this in no way means that they have “chosen” to give allegiance to the U.S. Technically, they haven’t pledged allegiance to the U.S. unless they’ve begun the process of legal citizenship. On the other hand, if the child’s parents are natural born Americans or naturalized Americans, then those parents are “subject to the jurisdiction” of the U.S.A. Notice the difference?

This means that any foreign born citizen–whether they be diplomatic personnel or visitors–are still citizens of their home country as are any and all of their children quite despite those children might be born.

The Supreme Court of the U.S. has also noted this distinction. As Thomas Cooley noted in his 1891 book, “The General Principles of Constitutional Law in America,” the phrase “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.”

Unfortunately, later opinions in a slew of court cases since warped the initial meaning of the law and bastardized it to mean the location of birth instead of the allegiance and “jurisdiction” of the child’s parents.

We need to erase those flawed precedents are return to the true meaning of the 14th Amendment. Let there be no more anchor babies. Getting rid of the birthright citizenship convention is one we should be doing whether Trump gets elected or not.

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  • Paul Hooson

    No. My own grandfather was born in Stockton, California of Canadian parents who’s Irish immigrant father and French Jewish mother were on business in California at the time. My grandfather ran both a hardware business, as well sold signs to most of the West Coast gas stations at the time. He was a hardworking asset to this country as are most persons born to foreign parents on American soil.

    Trump has been a total hypocrite on this illegal immigration issue. He was sued in court before on behalf of a large group of undocumented workers from Poland who were forced to do construction work at the request of Trump’s managers for just $5 an hour with no overtime pay for long hours and dangerous construction work. Trump himself was requested to submit testimony in court for his involvement in the hiring of this illegal workforce that were exploited for low wages in this court case. And, THE WASHINGTON POST claims that some evidence exists of Trump once again using some illegal workers on a current construction project. While Trump soapboxes on this illegal immigration issue, he continues to exploit undocumented workers for a profit.

    • LiberalNightmare

      Kelly Osborne knows the truth – someone has to clean the toilets

      • Paul Hooson

        Sadly true my friend…

    • jim_m

      IF you go back far enough EVERYONE was an immigrant at some point, even the so called native Americans. The game of who was here first is bullshit.

      • Paul Hooson

        Absolutely true. DNA proof has uncovered that about 1/3 of Native American’s genes have Eurasian DNA, proving many Native Americans can relate to an ancestry perhaps 13,000 to 24,000 years old as opposed to most other Americans whose ancestry is probably less than that of the Mayflower voyage.

  • Brucehenry

    Kooky birther nonsense

    • jim_m

      Not at all. Based on the fact that thousands upon thousands of children are being born here to parents who have entered the country illegally for the sole purpose of having their child born here, it is reasonable to propose altering the law. I wouldn’t eliminate it entirely, but I would change the law to bestow citizenship on anyone born to a legal resident or to anyone born to a parent who is a citizen. That is a reasonable alternative.

      What is the benefit in allowing someone to cross the border illegally and give birth to an anchor child less than 24 hours later?

      • jim_m

        To further expand on my comments…

        The constitutional rule for citizenship was created in a time when travel to the US was far more difficult. Now, when it is a simple task to cross borders, laws passed based on the circumstances of 1868 should be reconsidered.

        • Brucehenry

          So pass a constitutional amendment, don’t pretend a President Trump or a GOP Congress could change the law without one.

          Ordinary foreign nationals (not diplomats with immunity) ARE “subject to the jurisdiction thereof” and therefore all their children “born in the United States” are citizens. I suppose the laws could be changed to deport the undocumented parents of children born here and place the children in foster care or to allow them entry when they come of age, but a constitutional amendment would absolutely be required to forbid them citizenship.

          • Retired military

            Bruce
            We are in an age where the letter of the law doesnt matter anymore.
            If that were not true than Obamacare would not have been construed as a tax nor would SCOTUS have made the recent ruling regarding states setting up exchanges.
            It all depends on your meaning of the word IS.
            You sow the wind you reap the whirlwind.

          • Red Five

            Did you not read the article? We already have a constitutional amendment, the 14th Amendment. We also already have laws enabling us to deport illegal immigrants. The problem is that we no longer enforce those laws, and as Warner indicated, we have twisted the interpretation of the 14th.

            “Ordinary foreign nationals” who come here LEGALLY are certainly subject to the jurisdiction of the US, because they have already gone through the process of acquiring some sort of visa or beginning the citizenship process. But border-jumpers are not here legally, and we should not proffer citizenship status to any children they birth after jumping the border.

          • Brucehenry

            LOL yes I read it and, your opinion notwithstanding, the fact that Warner Todd Huston asserts that a “slew of court cases” has “bastardized” our interpretation of the 14th Amendment does not make it so. Nor does your assertion that “we have twisted our interpretation” make it so.

            The fact that “border-jumpers” are not here legally doesn’t mean they’re not subject to US jurisdiction. They can be arrested if the US wishes to arrest them, unlike diplomats who cannot be.

          • Brandon Johantges

            Then they wouldn’t be citizens of anywhere. The native country of the parents won’t accept the child as a citizen. So unless the US is going to force foreign countries through brute force to accept the child as a citizen. The child wouldn’t be a citizen of anywhere. It would be a country less child.

        • Commander_Chico

          When the 14th Amendment was passed, thousands of undocumented immigrants were pouring into the USA without visas, and had been for years. None of the famine Irish or the Germans who came at that time, nor the Jews and Italians, Slovaks and Poles who came for years after had visas.

          • Ken in Camarillo

            You are careless with your history. When the 14th amendment was passed, there was no immigration issue because there was no law restricting immigration until 1882 (Chinese exclusion act).

            Regarding your claim about Conservatives being against the Bill of Rights appying against state and municipal governments, I’ve never heard the incorporation doctrine being considered a trait of one or the other party. I’m a Conservative, and I consider the incorporation doctrine to be a complete fraud: I believe that amendments 2 through 8 always were meant to apply against all governments in the USA. Only the 1st was qualified by the words “Congress shall make no law…” I believe any Supreme Court ruling that an amendment 2 through 8 did not apply to a state constitutes a ruling as bad as the Dred Scott decision.

          • Commander_Chico

            Sure there was “no immigration issue” because there was “no law” until 1882.

            http://www.latinamericanstudies.org/ellis-island/natives.jpg

            There was a whole party organized around the issue – The American Party (Know-Nothings)

    • Thanks for your reasoned response. Oh, and fuck off.

      • WHO’S THE BUSTER

        And that quickly garners 6 up-votes?

        Interesting.

        I wonder if it is the first or second sentence that met with approval?

        Of course, this may also be a clear illustration of why Donald Trump is polling so favorably with Republicans, despite not being a Conservative. He is the embodiment of less than subtle anger.

    • 914

      I expected more from a Braniac like you Bruce! Cheerio!!

  • The Congressional Record reflects the original intent of the 14th Amendment was to “constitutionalize” the Civil Rights Act of 1866. The 1866 Civil Rights Act phrased citizenship thus: “all persons born in the United States, and not subject to any foreign power (stateless), excluding Indians not taxed.” 112 U.S. 99-103.’

    The above reference to “Indians not taxed” had to be specifically referenced because Indian reservations were not a “foreign” power, given that they are an enclave within the United States itself. Notice that there is no mention of Ambassadors, or aliens giving birth here, as they and their offspring are “subject to a foreign power..” Quite obviously we did not confer citizenship upon Ambassadors as a result of this Civil Rights Act.

    Only two years later, the same Congress wrote the terms of citizenship by the exact same standards only phrasing them differently. Rather than any confusion about “foreign power”, they phrased this exclusion in terms of “subject to the jurisdiction”, which is the same consideration.

    This is why the 14th Amendment excludes references not only to the offspring of Ambassadors and foreigners, but also to Indians. Neither Ambassadors, nor Indians “not taxed”, nor aliens/foreigners were referenced by the 14th Amendment, because they all were covered and excluded by the phrase “subject to the jurisdiction”. None of the offspring of these three considerations were intended to be citizens.*

    * Source: I copied this from somewhere. My notes don’t tell me from where though.

    • Commander_Chico

      Ambassadors and their families have diplomatic immunity and thus are not subject to jurisdiction.

      Other aliens certainly are.

      Secure the borders and require a pregnancy test in the consulate for visa issuance and this problem will be minimal.

      The fact is that this is just a right wing excuse to fuck with the Constitution and get rid of “equal rights” which is also in the 14th Amendment.

      • I stand by my statement above. Let’s let the Reader decide who is right and who is wrong; shall we?

      • Retired military

        “Secure the borders and require a pregnancy test”
        Per liberals
        a. securing the border is racist
        b. pregnancy test is war on women and racist. (think about lib response to having folks on welfare take a drug test).

  • jimrussell

    Turn out the lights, the party’s over. Republican’s have lost the minority vote, educated women and young vote, are in the process of losing the Hispanic and Immigrant vote, and they think they might win a national election in the next decade? The clowns in their clown bus are heading for the cliff.

    • ohio granny

      You want illegal invaders taking over your city or state? You want illegal criminals turned lose in your neighborhood? Only American citizens and naturalized citizens are supposed to vote. Illegals are not allowed to vote, even though I suspect a lot of them vote for democrats. Shame on anyone who looks the other way.

      • jimrussell

        The only people afraid of immigration are those that don’t understand or are ignorant of the American history of immigration, ie; where they themselves came from. That would encompass most Republicans.

        • Scalia

          Republicans aren’t afraid of immigration; they oppose illegal immigration, which is what many Democrats, at least on paper, oppose too.

          • jimrussell

            Republicans are afraid of anyone with dark skin or in a skirt.

          • Scalia

            Really intelligent reply.

          • jimrussell

            I know, the truth hurts.

          • Bigot you much? Project you much? Stupid you much?

            Trifecta.

          • jimrussell

            That’s the purview of the “whitey” Republican Party and everyone knows it.

          • Project you very much indeed.

  • James

    Ending birthright citizenship is a great way to turn a single generation problem into a multi-generation problem.

    • MartinLandauCalrissian

      Well, that was a pointless reply, Jimmie!

  • Brandon Johantges

    Then they wouldn’t be citizens of anywhere. The native country of the parents won’t accept the child as a citizen. So unless the US is going to force foreign countries through brute force to accept the child as a citizen. The child wouldn’t be a citizen of anywhere. It would be a country-less child.

    • ohio granny

      Tough. If the parents do that to their child that is on them. We, citizens of the USA, do not owe the world the ability to ignore our laws and then be rewarded.

    • Ken in Camarillo

      For the countries I checked, your claim is false. You’ll need to identify some countries where your claim is true.

  • Hawk_TX

    Here is an excellent article from Brietbart that agrees with this article and offers a more in depth analysis.

    Constitution Doesn’t Mandate Birthright Citizenship

    • Commander_Chico

      So “words matter” when it’s about state insurance exchanges in Obamacare, but when it’s the Constitution, they don’t matter.

      “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.”

      • Scalia

        You didn’t read the link, did you? If you did, then your spin is inexplicable. Go back and see how and subject to the jurisdiction thereof is defined. The words mean what the People who used them understood them to mean. If you disagree, then please engage the argument.

        • Commander_Chico

          Yeah, that’s an idiotic tortured point. Unless you’re a diplomat, if you’re in the USA, your’re subject to the juridiction of the USA.

          Even back then, there was no question about children of immigrants born in New York or New Orleans being citizens.

          • Scalia

            Chico, I really wish you would actually think about what you write and try to engage in reasoned dialog. I wouldn’t mind having an intelligent conversation with you, but this kind of stuff shows me you’re not firing on all cylinders.

            I asked you to engage the argument. Please do so.

          • Which is why it’s best to either down ding and move on or “Ha, ha” and move on (or both, with the emphasis on move on) when it comes to chicka’s “contributions.”

          • Scalia

            Agreed, for the most part. I normally ignore Chico’s comments, but I reply on occasion so that lurkers will know that conservatives have rational answers for the issues we face.

      • Hawk_TX

        Yes, words matter but only insofar as they are actually understood.

        In Webster’s 1828 dictionary one definition given for jurisdictions says this.

        “The power or right of exercising authority. Nations claim exclusive jurisdiction on the sea, to the extent of a marine league from the main land or shore.”

        Utilizing this definition in the 14th amendment it reads “All persons born
        or naturalized in the United States, and subject to the power or right of exercising authority thereof, are citizens of the United States and of the State wherein they reside.” An alien mother is subject to the power or right of the exercising authority of their home nation. This is why the income earned abroad by U.S. citizens is taxed by the government, this is because they are subject to the exercising authority of the United States government.

        The 14th Amendment (like the 2nd) is in two parts, and if you leave out the second part, you get birthright citizenship. Factually, the 2nd half of the phrase (“… and subject to the jurisdiction therein”) is the relevant part of the Amendment, which the author of the Amendment inserted in order to address the issue of freed slaves. If the Jurisdiction thereof meant the
        territorial U.S. then the 14th amendment may as well of read “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.”

        If birthright citizenship extended to aliens then the Jurisdiction clause would be rendered meaningless. Either ‘under the jurisdiction’ means something or it does not. A general rule of logic is that if an interpretation of anything renders it meaningless, that interpretation must be wrong if any other could be valid.

        A commenter on Hot air summed up several legal cases that confirmed this restrictive interpretation of jurisdiction thereof.

        “The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

        Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called Slaughter-House cases -83 US 36 (1873) and 112 US 94 (1884)-13. In the 1884 Elk v.Wilkins case, the phrase subject to its jurisdiction was interpreted to exclude -children of ministers, consuls, and citizens of foreign states born within the United States.- In Elk, the American Indian claimant was considered not an American citizen because the law required him to be -not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.-

        The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe -direct and immediate allegiance- to the U.S. and be -completely subject- to its jurisdiction. In other words, they must be United States citizens.”

        If you recognize the actual meaning of the 14th amendment then you would
        realize that it actually bans birthright citizenship for aliens. It would take a new Constitutional amendment to even grant it to aliens. Congress doesn’t
        even have the authority to grant it since article 1, section 8; only grants Congress the power to “To establish a uniform rule of naturalization”. Citizenship by naturalization is by definition not by birthright.

        • Commander_Chico

          See my point above. When it takes that many tortured words to mis-explain “jurisdiction” you should know you’re wrong.

          By your interpretation, the descendants of Irish immigrants from the 1840s are not citizens now.

          • Hawk_TX

            I’m sorry if it was too many words for you. I was simply trying to cite a broad swath of historical records to support my point.

            It’s not my interpretation, it is the interpretation stated by the drafters of the 14th amendment and by multiple Supreme Court cases. If you had actually read the “many tortured words” in my comment you would know that.

            The descendants of 1840s Irish immigrants would be citizens from birth as their ancestors would have become naturalized citizens long ago. Which is completely off topic since we are discussing birthright citizenship for children of aliens.

  • Ken in Camarillo

    There is a simpler way to end birthright citizenship without requiring an adjusted interpretation of the 14th amendment. It is well established that you can lose Constitutional rights by violating laws: a felon cannot have a firearm, and cannot vote in some jurisdictions. Congress could pass a law that if you break the law by being in the country illegally, the citizenship by birth provision of the 14th amendment is not available to your child.