Written by Nathan Tucker
Playing the American jackpot—winning citizenship for your children simply by ensuring that they are born in the United States—not only encourages millions to enter this country illegally, but has spawned an entire industry that arranges for tourist visas for pregnant women so they clan fly to our country to give birth to an American citizen.
Many argue that citizenship based simply on being born in the United States is enshrined in the first sentence of the 14th Amendment, which reads: “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.”
Some commentators have recently argued that those who drafted the 14th Amendment never intended to provide birthright citizenship to the children of those who are in this country illegally. They contend that the phrase “subject to the jurisdiction thereof” excludes those who are citizens of another country.
They note that Senator Lyman Trumbull, a principal author of the Amendment, argued that this phrase meant subject to the complete jurisdiction of the United States, “[n]ot owing allegiance to anybody else.” Senator Jacob Howard, another principal drafter, stated that the phrase means a full and complete jurisdiction, the same “in extent and quality as applies to every citizen of the United States now.”
Others argue that the broad language of the Amendment was intended, with few exceptions, to grant birthright citizenship to everyone born in the United States. Senator Trumbull, for instance, also stated that “birth entitles a person to citizenship, that every free-born person in this land, is, by virtue of being born here, a citizen of the United States.”
Senator Howard voiced his agreement, arguing that every person born within the limits of the United States “is by virtue of natural law and national law a citizen of the United States.” During Congressional debates, another senator, Justin Morrill, asked, “As a matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by birth alone?”
This search for what limits, if any, those who ratified the Amendment intended to place on birthright citizenship is inconclusive. The reason, however, is not because its ratifiers intended to extend birthright citizenship to the children of illegal immigrants, but because it wasn’t an issue in the late 1860s when the Amendment was drafted, debated, and ratified.
In fact, there was no such thing as an illegal immigrant until Congress start to pass laws restricting immigration in the 1880’s. The historical record will never reveal whether those who placed birthright citizenship in the Constitution intended to extend it to children of illegal immigrants because such a concept was, pun intended, foreign to them.
The purpose of this clause in the 14th Amendment was to reverse the Supreme Court’s decision in Dred Scott v. Sanford (1856), which held that blacks were not and could not be citizens of the United States. It sought to guarantee blacks national citizenship and entitle them to the same rights as everyone else.
There is nothing in the historic record to warrant the jump from guaranteeing birthright citizenship for the recently freed black man to enshrining it for the progeny of illegal immigrants. The Constitution cannot be read to allow a parent, by giving birth in this country, to grant her child a citizenship that Congress has lawfully denied.
As the Court itself noted in Elk v. Wilkins (1884), “no one can become a citizen of a nation without its consent,” and there can be no more forceful denial of consent than to make one’s presence in the country illegal. It defies credibility to read the Constitution to allow Congress the authority to deny entrance to an individual and his unborn children but, once the feat is accomplished, the newborn offspring must be made citizens.
A child born to illegal immigrants in this country is just as unlawfully present in this country as his parents are, and granting that child birthright citizenship makes a mockery of Congress’ power to regulate immigration. There is nothing in the historic record to show that those who ratified the 14th Amendment ever intended such a ludicrous proposition.
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