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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