Birthright Citizenship and Original Intent
This Classic Column was written on August 5, 2010.
First it was talk radio, then Rand Paul, and now it seems like most of the Republican leadership of the United Senate is saying that the Fourteenth Amendment does not grant citizenship to the American-born children of illegal aliens. The latest to sign on to the idea of hearings is Sen. John Cornyn of Texas. But Sen. Jon Kyl of Arizona had already brought up the idea on Face the Nation, and Senate Republican Leader Mitch McConnell of Kentucky immediately jumped on board.
That means that if Republicans take the Senate – not likely, but possible – we just might get those hearings.
That would pit two distinct camps against each other, largely divided by party lines. One group sees nothing ambiguous about the amendment: if you’re born here, you’ve got citizenship. The other group says not so fast.
Birthright citizenship has become a racket with pregnant women sneaking across the border for the extremely valuable commodity of American citizenship for the new child, leading to permanent residency for mom and other family members.
There is an answer to the question of what the Fourteenth Amendment really says.
Of course, to accept the answer, one must be an “originalist,” believing as Justice Antonin Scalia does that the Constitution is a “dead document.” If you subscribe to the Al Gore position that the Constitution is a “living document,” then you are free to make it say whatever you want.
With that caveat, let’s go back to the United States of the post Civil War era when the Fourteenth Amendment was passed by Congress on June 13, 1866 and ratified July 9, 1868. As The Heritage Guide to the Constitution explains, prior to that time, to be a citizen of the United States you simply had to be a citizen of a state — with an exception. The Dred Scott v. Sanford decision of 1857 had held that no black, not even a freed black, could be a citizen. The purpose of the Fourteenth Amendment was to halt that injustice. It did so by flipping the order and making U.S. citizenship primary.
So that the amendment wouldn’t be used for mischief-making, the framers added the words “…and subject to the jurisdiction thereof…” to the language about birth and naturalization. The mischief they were worried about had to do with Indians.
Congress had just passed a Civil Rights Act in 1866 that 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.”
So, the Fourteenth Amendment simply constitutionalized that law, with one small difference. It excluded that part about “Indians not taxed.”
If you’re a student of the Declaration of Independence, you may take note of that document’s description of Indians as “the merciless Indian Savages,” and you get an idea of the prevailing attitudes that still existed. Senator Jacob Howard of Ohio, who wrote the Citizenship Clause was adamant that it would not make Indians citizens of the United States. Howard argued that any Indian who maintained his tribal association was not subject to the jurisdiction of the United States.
Howard was supported by the Chairman of the Senate Judiciary Committee, Sen. Lyman Trumbull, who said the amendment meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians were excluded because they owed allegiance to their tribes.
So, birth alone, according to the men who wrote and promoted the Fourteenth Amendment for ratification, was not enough.
Sen. Howard went on to say that the concept of “allegiance” as it related to this issue “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States.”
When Congress began extending citizenship rights to Indians in 1870, it demonstrated that it could define who was properly within the jurisdiction of the United States. Based on original intent, there is no doubt and no reasonable argument that birthright citizenship can and likely should be denied to the children of people who have entered the United States against our laws, sometimes for the explicit purpose of bearing a child.
Lynn Woolley is a Texas-based author, broadcaster, and songwriter. Follow his podcast at https://www.PlanetLogic.us. Check out his author’s page at https://www.Amazon.com/author/lynnwoolley.
Order books direct from Lynn at https://PlanetLogicPress.Square.Site. Email Lynn at lwoolley9189@gmail.com.
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