No single issue can fire up a national debate quite like anything related to immigration — particularly during the Trump era.
When President Trump decried the doctrine of birthright citizenship on the campaign trail in 2015, it sparked a national debate, with many on the Left and Right issuing ad hoc condemnations.
When news broke Tuesday that the president is considering ending birthright citizenship with an executive order, many of these same voices, once again, condemned the president, claiming birthright citizenship is indeed constitutional.
But if that idea were true, why wasn’t the 14th Amendment applied to illegal or temporary immigrants prior to the 1960s?
The doctrine of birthright citizenship — the idea that citizenship is granted merely by being born within the geographic limits of the United States — is nowhere to be found in the Constitution.
The 13th, 14th and 15th Amendments, also known as the Civil War Amendments, were enacted to protect the newly freed slaves and to emphasize that they are, in fact, citizens of the United States and privy to the same natural and constitutional rights as any other citizen.
It’s no coincidence that the citizenship clause is within the amendment that also includes the Equal Protection Clause.
Prior to the amendment, state citizenship automatically conferred national citizenship. After the conclusion of the Civil War, however, the states decided to nationalize citizenship out of fear that some states would not recognize the newly freed slaves as citizens.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof (italics mine), are citizens of the United States,” reads the 14th Amendment’s citizenship clause.
Presently, it’s as if the Courts, politicians and the punditry who support birthright citizenship omit any mention of jurisdiction as if it were to only say “all persons born or naturalized in the United States … are citizens of the United States.”
But there’s one glaring problem: the clause does not make such a statement.
The author of the clause — Michigan Sen. Jacob Howard — made clear in the halls of Congress the clause’s intent. He explains that “jurisdiction thereof” was meant to exclude “persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers,” and that “jurisdiction” meant “full and complete jurisdiction.”
The idea of full jurisdiction was understood both by Congress and the people as Howard’s speeches were disseminated to the public at the time.
No one is disputing that anyone on American soil is not subject to territorial jurisdiction, and required to follow American law. But it doesn’t follow that one is also afforded political jurisdiction. If, for example, an illegal alien were afforded the latter he would be able to vote, serve on jury and could not be deported, he could self-immigrate and be afforded complete sovereignty akin to that of a citizen.
Only when an alien becomes an American citizen, repeating the oath of allegiance to the United States that is part of our naturalization process, are they granted political jurisdiction. This is the moment when jurisdiction becomes full and complete.
As late 19th-century scholar and Judge Thomas Cooley writes in his treatise The General Principles of Constitutional Law in America:
[A] citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.
“This amendment which I have offered is simply declaratory of what I regard as the law of the land already,” Howard said in his remarks introducing the new language before the Senate in 1866. The law he was referring to was the Civil Rights Act of 1866, passed less than two months prior over a veto from then-President Andrew Johnson by a two-thirds majority in both houses.
“[T]hat 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,” read the citizenship provision of the Civil Rights Act of 1866.
Considering the political climate immediately following the Civil War, there were legitimate concerns the Act may be in jeopardy, so “the Congress took steps to include similar language when it considered the draft of the 14th Amendment,” according to the Library of Congress.
In 1873, five years after the 14th Amendment’s passage, U.S. Attorney General George Williams, in a legal opinion, explained that the term “jurisdiction” meant “absolute and complete jurisdiction” excluding aliens, even those born on American soil. The clause also excluded Native Americans (who the majority of, at the time, had little desire to be American citizens).
Howard assured his colleagues this language would not confer citizenship on Native Americans, who were born within the Country’s geographical limits, because they owe allegiance to their tribes.
To Lyman Trumbull, chairman of senate judiciary committee, subject to the “jurisdiction thereof,” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”
The desideratum of “absolute” jurisdiction excludes any children who might owe allegiance to another sovereign, such as children that are subjects of any foreign government as explained in Elk v. Wilkins in 1884.
Foreign citizens cannot bestow jurisdiction on their children merely by giving birth within the geographic boundaries of the United States, only with the consent of the sovereign people can they be conferred jurisdiction.
It wasn’t until 1898 in United States v. Wong Kim Ark, that the “separate but equal” court, held that any child born in the U.S. of legal immigrant parents with “permanent” residence in the United States are guaranteed citizenship under the 14th Amendment. A narrow exception would be for children of diplomats.
There is zero precedent for allowing citizenship to children born to illegal alien parents. Article 1, section 8, clause 4 gives plenary power to Congress over naturalization and Section 5 of the 14th Amendment over jurisdiction, which Congress altered to allow Indians born in the United States to become citizens in 1924.
There is no existing law passed by Congress as of now that gives jurisdiction to illegal aliens born in the United States.
The executive and judiciary don’t have the power to decide the issue.
The debate over whether Trump can sign an executive order to end the practice of birthright citizenship is a different argument entirely.
Will Ricciardella is an American writer, video producer and journalist. He holds degrees in political science and economics from California State University, Long Beach. He is currently the social media director for The Daily Caller.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.