“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.” — XIV Amendment of the Constitution of the United States
Well that’s a pretty bold statement. Who am I to say that children of Illegal Aliens are not Citizens upon birth? I say that because of the part of the Fourteenth Amendment that most people choose to ignore. It is a two part statement. The first part concerns being born or naturalized in the United States and the second part states that you must be subject to the jurisdiction thereof. It’s not either or, the requirement is that both conditions must be met.
We have in the news talk about Lindsey Graham introducing a new Constitutional Amendment to bar children of illegal aliens becoming citizens upon birth. I don’t think that step is necessary.
Let’s look at the history. The infamous Dred Scott decision said that no black of African descent could be a citizen of the United States, even if they were freed blacks. After the Civil War Congress passed the Civil Rights Act of 1866 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.”
Prior to the passage of this law, citizenship was conferred on individuals by the states and U.S. citizenship flowed from that. This law reversed the process. Why? Because some southern states could have prevented blacks from becoming U.S. citizens by blocking state citizenship. By turning it around, they were U.S. citizens first and then citizens of the states in which they lived. Similar language was included in the Fourteenth Amendment to prevent subsequent Congresses from repealing the 1866 Act. In the Fourteenth Amendment, the language regarding Indians was dropped. There were some concerns raised that this would automatically confer citizenship upon Indians, who also had allegiance to their tribes. Senator Jacob Howard who was the author of the Citizenship clause said this:
“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”
Senator Lyman Trumbell, who was Chairman of the Senate Judiciary Committee agreed, “subject to the jurisdiction thereof {meant} not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians were not subject to the jurisdiction of the United States because they owed allegiance, even if only partly, to their tribes.
So if an illegal immigrant comes to the United States and has a child, is that child automatically a United States citizen? Does this action comply with the Fourteenth Amendment? To the first part yes, they are born here; but to the second part, no. The mother is a citizen of her home country and is thus subject to the jurisdiction of that country, not the United States. Secondly, she is here illegally so she is exempting herself from rather than subjecting herself to, our immigration laws. As for the child, a newborn can hardly swear allegiance to any country, so in all cases it fails the second part of the Citizenship Clause. Consider diplomats who may be assigned to the United States. If the French Ambassodor’s wife has a baby while posted here, is her child not French?
Let’s take another look at the history. In Elk v Wilkins (1884), the Supreme Court held that a “native Indian who had renounced allegiance to his tribe did not become ‘subject to the jurisdiction’ of the United States by virtue of the renunciation.” It went on to state, “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States.” So that would mean an illegal alien could not come to the United States and declare in the delivery room, “I renounce my allegiance to [fill in country here],” and then her child would be a citizen. “Neither the ‘Indian Tribes’ nor ‘individual members of those tribes,’ no more than ‘other foreigners’ can ‘become citizens of their own will.” In other words there has to be a treaty or other legislation that allows the renunciation. Congress began extending citizenship to various Indian tribes beginning in 1870.
In a later Supreme Court decision United States v Wong Kim Ark “conferred birthright citizenship to legal residents of the United States.” It appears that the language of the majority opinion is broad enough to allow interpretation that this also extends to children of illegal aliens, but it should only take a Supreme Court challenge or legislation to clarify the meaning of the Citizenship Clause to do what the authors of that clause originally intended. There is no need for the arduous process of a Constitutional Amendment. With the will of the American people as strong as it is for regaining control of the immigration situation, this could be done with a new Congress in January.
Reference: The Heritage Guide to the Constitution, Regnery (Washington, 2005)
