By Douglas V. Gibbs
Immigration has been a top issue over the last couple decades, and in the 2024 Presidential Election Donald Trump’s call for border security and mass deportations has triggered the Democrats and their allies into a full-blown freak-out. The most common response is that Trump plans to separate families. The idea behind the family-separation claim is that there are many illegal alien parents who have had children within the borders of America, and due to the concept of Birthright Citizenship, the children cannot be deported with their parents, therefore deporting the parents will split up families. So, the answer, if you are going to be kind and fair and all of the other socially acceptable words they want to throw in, is to not deport the parents in the first place.
When asked about splitting up families, new border czar Tom Homan responded, “We plan to deport the kids, too.”
“But, what about Birthright Citizenship?” came the establishment response.
Donald Trump responded by saying that we will then have to eliminate Birthright Citizenship for the children of illegal aliens.
“You can’t do that,” was the response. “Birthright Citizenship applies to the children. It’s in the Constitution.”
Except, it’s not.
Birthright Citizenship is a politically and legally accepted notion that if someone is born on American Soil they are automatically a citizen of the United States. Proponents will argue that the original intent of the Citizenship Clause in the Fourteenth Amendment was to institute Birthright Citizenship, and that it was codified by the United States Supreme Court in 1898 as a result of the Wong Kim Ark v. United States ruling.
The debates on the floor of Congress over the Citizenship Clause in 1866 through 1868 were indeed rigorous, as provided in The Congressional Globe, the congressional record of the time. While the primary purpose was to make sure that the children of the newly emancipated slaves were recognized as citizens of the United States, the debate recognized that the clause would become the go-to clause when it came to defining American Citizenship. While citizenship is referred to in prior articles of the Constitution, with the rules for naturalization being delegated to Congress in Article I, Section 8 and the recognition of citizenship and natural born citizenship as separate and unique conditions in Article II, a definitive definition of citizenship had not been present in the Constitution until the 1868 ratification of the Fourteenth Amendment.
The two men who wrote the Citizenship Clause in committee, Senators Howard and Trumbull, argued that the intent was to mirror what was already known and accepted when it came to citizenship. In other words, they wanted to stick to what the Founding Fathers would approve of.
As I wrote in my book, 25 Myths of the United States Constitution, a decade ago when we break down the language of the Citizenship Clause we must not only pay attention to each word, we must study the context of what was meant at the time rather than interpret the clause to fit the narrative of a particular ideology.
The Citizenship Clause 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.”
After the first part establishing that a part of citizenship comes from either being born in the United States, or being naturalized, the word and appears. The word “and” means that there is a second requirement. In other words, being born on American Soil, or naturalized in the United States, does not automatically make someone a citizen. “And” means that there is a second requirement.
The second requirement comes next in the clause: “subject to the jurisdiction thereof.”
When asked by Congress what they meant by subject to the jurisdiction thereof, the response was, “what we mean is full jurisdiction, meaning full allegiance.” Both drafters of the clause then explained a number of times, Senator Howard in one instance on May 30, 1866, that Indians not taxed, the children of diplomats, ambassadors (and other foreign consuls and ministers) and the children of foreigners and aliens were not to be considered automatically citizens. Since the child cannot choose its allegiance, the allegiance is based on that of the parents’. In the case of naturalization, that is why one’s allegiance to one’s former country must be renounced – there can only be one allegiance, and to fulfill the “subject to the jurisdiction thereof” part of the Citizenship Clause the newly naturalized citizen must throw off all foreign allegiances.
The same is true for those born on American Soil. At birth, one is unable to throw off any allegiance to another country because the child is too young to make that decision, so the determination of allegiance falls upon that of the child’s parents. If the child is born on American Soil and the parents have shown either allegiance to the United States, or are in the process of moving in that direction, than the child must be considered an American Citizen. However, if the child’s parents hold allegiances to foreign powers, the child cannot be an American Citizen.
If, for example, two Americans were on vacation in a foreign country, and they bore a child within the borders of that other country, from a constitutional standpoint (and a common sense viewpoint) that child would not be a citizen of the country they were born in, but that of the United States since that is the country to whom the allegiances of the parents resides. The same might be true if a French ambassador and his wife out of the French embassy in the United States has a baby here, but because of their allegiance to France, that child would be a French citizen. If parents who are students in the United States, which means they are temporary visitors to the United States if they have not taken any legal or administrative actions toward immigration, were to have a child on American Soil, the child would be a citizen of the country that the students were from, not the United States. Per international law if the parents were from two different countries, the child’s citizenship would be that of the father. Same thing would go for an illegal alien, who entered the United States disobeying immigration laws – their child would not be a citizen despite being born on American Soil. If they had allegiance to America they would have gone through a legal process and began paperwork towards staying in the United States permanently.
The problem is that we operate on an idea that the Constitution may only be “interpreted” by the federal court system, regardless of any evidence that might provide definitions contrary to the court’s interpretation. Legacy media and leftist political allies across the board are complaining that the President cannot change the Constitution with an executive order. But eliminating Birthright Citizenship would not be changing what the Constitution says, but would support the original intent based on congressional testimony by Senators Howard and Trumbull.
If one wishes to argue that only judicial interpretation may be referred to, and the congressional testimony of the framers of the clause doesn’t matter, fine. Let’s use court cases. In the Slaughterhouse cases of 1872 the U.S. Supreme Court ruled in agreement with Trumbull and Howard, stating that the latter part of the clause that reads “subject to the jurisdiction thereof” was intended to “exclude the children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
In 1884 in the Elk v. Wilkins case the Supreme Court denied citizenship to an American Indian because the individual “owed immediate allegiance to his tribe,” not the United States.
In 1898 the United States v. Wong Kim Ark case, the one most referenced when those who support the concept of Birthright Citizenship wish to prove the concept has judicial support, the court found that Ark was a citizen because he was born in the United States and because his parents by the time of his birth had become permanent residents which in the eyes of the court fulfilled the “subject to the jurisdiction thereof” part of the Citizenship Clause.
The children of illegal aliens are the children of person who have disregarded American law and have refused to pursue the legal protocols of immigration in place by law, so how is it that they are showing any allegiance to the United States? And if they have no allegiance to the United States based on their illegal activities how is it we could even consider their children born in the United States automatically Americans therefore making deporting the law-breakers impossible since they are parents of so-called Americans as per Birthright Citizenship?
If we are going to expect naturalized citizens to renounce any foreign allegiances, would it not make sense for the parents of children born on American Soil to renounce all foreign allegiances before we would be willing to consider those children to be American citizens? One way to show that one respects and honors America and wishes to give their allegiance to America would not be violating immigration laws in the process of coming here.
— Political Pistachio Conservative News and Commentary
One thing missing in all of this is that prior to the 14th Ammendment was written [and never ratified by the states] there was Land jurisdiction. When a baby was born on American soil he/she was born on the Land and soil jurisdiction, not as a U.S. Citizen or Citizen of the United States. Those citizenships were newly created. Land and soil jurisdiction is where all ‘rights’ and one’s sovereignty comes from; Law of the Land. U.S. Citizens are not sovereign and proof is seen in the ALL CAPS name which is DOG LATIN and not English and created on every document from the government. One’s given name is in upper and lower case; not ALL CAPS. The unlawful conversion of the birth certificate from upper and lower case to ALL CAPS is fraud perpetrated on the innocent Mother and Father with no disclosure.