Alien Birthright Citizenship: A Fable That Lives Through Ignorance

By P.A. Madison, The Federalist Blog, December 17, 2005

Ever since the subject of Congress taking up Birthright Citizenship have we seen the power of ignorance at work through the MSM [MainStream Media]. It is difficult to find any editorial or wire story that correctly gives the reader an honest and accurate historical account of the Fourteenth Amendment in regards to children born to foreign parents within the United States. Most often the media presents a fabled and inaccurate account of just what the Citizenship Clause of the Fourteenth Amendment means.

Recent story lines go something like this: "Currently the Constitution says that a person born in this country is an American citizen. That's it. No caveats." The problem with these sort of statements other than being plainly false is that it reinforces a falsehood that has become viewed as a almost certain fact through such false assertions over time.

This is like insisting the sun rotates around the earth while ignoring the body of evidence to the contrary.

During the reconstruction period following the civil war the view on citizenship was that only children born to American parents owing allegiance to no other foreign power could be declared an American Citizen upon birth on U.S. soil. This is exactly the language of the civil rights bill of 1866: "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."

The author of the Fourteenth Amendment, Rep. John A Bingham (OH), responded to the above declaration as follows: "I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."

Already before we get to the Fourteenth Amendment Citizenship Clause we have the entire Congress declaring only children born to parents who owe no foreign allegiance shall be citizens. We also have the author of the Fourteenth Amendment declaring this is law of the land. It just gets worst for advocates who want to either believe or, revise history, to support their fable that the Fourteenth Amendment somehow magically makes anyone born in the United States regardless of the allegiance of their parents a natural born citizen.

Sen. Jacob Howard, who wrote the Fourteenth's Citizenship Clause believed the same thing as Bingham as evidenced by his introduction of the clause to the US Senate as follows:

Advocates for birthright citizenship for aliens either through ignorance, or deception, attempt to pretend "subject to the jurisdiction" means only one thing: location at time of birth. It does not, and never had such a meaning during the time period in question. The record of law is full of references to jurisdiction that had nothing to do with physical location. Take for example title XXX of 1875, sec 2165 where is states:

Simply being on US soil (limits) does not automatically put you under US jurisdiction like some pro alien advocates would like to believe. Under the common myth of the meaning -- simply being within the limits of a State automatically places an alien under US jurisdiction for Fourteenth Amendment purposes. It does not as Bingham and Howard plainly makes clear as well as laws regarding the subject at the time also make clear.

So than, what exactly did subject to the jurisdiction mean? Sen. Lyman Trumbull, Chairman of the Judiciary Committee, framer of the Thirteenth Amendment told us in clear language what the phrase means under the Fourteenth:

Sen. Jacob M. Howard, responded to Trumbull's construction by saying:

One might wonder why did Jacob Howard use the phrase "subject to the jurisdiction thereof" rather than the language of the civil rights bill of 1866 and 1870? The answer is simple: there was confusion over what a Indian’s allegiance might be and most everyone in Congress at the time did not want to give blanket citizenship to all Indians across the board.

In other words, it was feared by some that an Indian might be considered to owe no allegiance to any foreign power, and therefore, could become a citizen at birth. Since Indians were not under the direct jurisdiction of the United States (they were under the jurisdiction of their respected tribes) the language of the Fourteenth Amendment would disqualify them. This is why the language of the Citizenship Clause ended up different than the language of the civil rights bill of 1866 and 1870 and made more restrictive as to who could become a citizen by birth.

Myths can be difficult to dispose of, and birthright citizenship to aliens is no exception. Pro immigration advocates will refer to the Supreme Court ruling U.S. v. Wong Kim Ark as a desperate attempt to keep the fable alive. The problem with relying on Wong Kim Ark is that it draws zero support from the Fourteenth Amendment. In fact, the ruling had nothing to with the Fourteenth Amendment at all, but everything to do with English Common Law, something the Fourteenth's Citizenship Clause had no connection because it was a virtue of "national law."

There is other significant problems with the Wong Kim Ark ruling other than having no basis in Fourteenth Amendment text, intent and history that will never hold up under review -- and that is how will any court with a straight face attempt to reconcile the civil rights bill of 1870. Remember that civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.

You cannot simply revise he Fourteenth's Citizenship Clause to mean yes, it really was the intent of the Congress to grant citizenship to alien children born on US soil when the same Congress enacted law afterwards that did just the reverse. Try and explain why Congress would pass a Constitutional Amendment that grants citizenship to ANYONE born in the US and then turn around and pass a law that would deny automatic citizenship to aliens? Because you cannot, only leads us back to the to the exact construction of the clause for which it was intended and written to mean.

The Wong Kim Ark ruling is so badly flawed and irrelevant probably lead to the US Supreme Court in 1982 to say they "had never confirmed birthright citizenship for the children of illegal aliens."

By far the most relevant Supreme Court ruling on the subject to date, and indeed, fully supported by the Fourteenth Amendment itself came in Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase "subject to the jurisdiction" requires "direct and immediate allegiance" to the United States, not just physical presence.

If pro immigration groups or individuals want to continue in believing the Fourteenth Amendment grants citizenship to anyone born in the country regardless of their allegiance, fine -- but to continue to insist the Fourteenth Amendment supports their fable is both feeble and a disrespect to American history.

Reproduced under Creative Commons license (http://creativecommons.org/licenses/by-nc-sa/2.5/)

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