August 23, 2019
MY CORNER by Boyd Cathey
BIRTHRIGHT CITIZENSHIP and the Future of America
Kamala Harris is very angry with Donald Trump.
With her usual condescension and scorn, she tweeted out on Thursday, August 22, that Donald Trump should go read the 14th Amendment—the implication being that when the president brought up, once again, the possibility that he might issue an Executive Order regulating birthright citizenship, he was woefully misreading the application of that Reconstruction amendment.
Of course, for a supercilious Leftist elitist like Harris, Trump will forever be that ignorant, brash, illiterate, racist New Yorker who is just way out of his league. It doesn’t really make any difference that he graduated with a B.S. in Economics from the prestigious Wharton School of Business at the University of Pennsylvania. You see, he doesn’t have all the fineries and veneer of the self-proclaimed East Coast-West Coast Brahmin Elites who have controlled this country, its economy, its foreign policy, and its government for more than a century. Despite the fact that he has—in my view—given in far too often to those same Elites, nevertheless, they will only accept 100% obedience and compliance. Upsetting the apple cart, thwarting the advance of globalism in the slightest will get you—the Russia Hoax, the White Nationalist/Racist Hoax, the Gun Control Hoax, endless investigations and multiple mini-impeachment efforts, plus the extreme and active (even violent) hostility of almost all the media, academia, Hollywood, and the political class.
You can’t get off the Deep State reservation, even a hare, and expect any mercy.
So, when once again the president declared that his administration was looking into ending “birthright citizenship” through a presidential Executive Order—something he had suggested back in October of 2018—all hell broke loose, and the officious and ideologically crazed Harris jumped like a famished black snake on a defenseless toad. Once again it was the Trump template of “full blown racism,” “appeals to white supremacy,” “undermining and attacking our democracy,” and, of course, since Trump is an illegitimate president, an interloper—then almost any type of resistance is permissible.
What such an Executive Order would do is clarify the application of the 14th Amendment and, essentially, end birthright citizenship for children of illegal aliens who come across the US border and then produce offspring who, then, as if by magic become American citizens.
Recall that the amendment was enacted after the War Between the States to guarantee the rights of citizenship to manumitted slaves and their offspring. And, indeed, there is a serious legal question about whether the amendment itself was ever legally and legitimately ratified. But be that as it may, it has applied ever since 1868.
Here is how Section 1 of the 14th Amendment reads:
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Harris and other open border zealots always quote the first section: “All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside.” But the leave out, either by mistake or by direction: “and subject to the jurisdiction thereof.”
It’s a key phrase, critical to understanding what the authors of the amendment intended and what for nearly 100 years was settled law up until the 1960s when leftist lawmakers got into the act simply by de facto practical applications. In other words, between the very clear and forthright intention of its authors that the 14th Amendment only applied to slaves and their offspring born in the United States who are necessarily “subject to the jurisdiction thereof,” and the imposed practice we now have which enables a foreign woman to illegally slip across the Rio Grande and have a child who then, by that simple act, becomes a citizen and an “anchor baby,” permitting its illegal relations to all come across—between these two interpretations and applications there is an absolute irreconcilable difference.
The key figures in drafting the amendment at the time were clear: Senator Lyman Trumbull, pivotal in the drafting the 14th Amendment, declared “subject to the jurisdiction” meant subject to “complete” jurisdiction of the United States, and “[n]ot owing allegiance to anybody else.” Senator Jacob Howard of Michigan, responsible for the critical language of the jurisdiction clause, stated that it meant “a full and complete jurisdiction,” that is, “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” In other words, a non-citizen simply by giving birth on this side geographically of the Rio Grande does not produce a new citizen of the United States.
Presented with this history, those defending the current practice, including Judge Andrew Napolitano on Fox, appeal, like Harris, to constitutional practice and to the courts.
But, actually, the Supreme Court has spoken on this question, at least indirectly.
In 1884, sixteen years after the 14th Amendment was ratified, John Elk, an American Indian, went to court to argue that he was an American citizen due to his birth in the United States. In the Supreme Court ruled that the 14th Amendment did not grant Indians citizenship. As Ann Coulter cites that decision:
[The] “main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the and to put it beyond doubt that all persons, white or black … should be citizens of the United States and of the state in which they reside.”
And she adds: “American Indians were not made citizens until 1924. Lo those 56 years after the ratification of the 14th Amendment, Indians were not American citizens, despite the considered opinion of Judge Napolitano.”
Ending birthright citizenship, based on a false and specious reading of the 14th Amendment, is an idea whose time has come, in fact, is far overdue. At the very least, an Executive Order would force the courts, including the Supreme Court, to take a serious look at the historic abuse of our immigration system and the definition of American citizenship.
Let us hope that this time—nearly a year since he raised it—President Trump will follow through on his consideration: birthright citizenship has been and is an Achilles’ Heel in American immigration policy. Ending it would be a major step in securing our border and preserving the integrity of our culture.
I believe I passed on to you last year the following legal essay by Professor of Law, John Eastman. It is a succinct but thorough restatement of the points made in my commentary:
President Trump’s comments are not even set to air until this weekend, but already they have created a firestorm of commentary, most of it ill-informed.
It is not “within the president’s power to change birthright citizenship,” claimed Lynden Melmed, former chief counsel to the US Citizenship and Immigration Services, echoing the views of many in the legal academy. by the 14th Amendment to the Constitution, and therefore can only be “changed” by constitutional amendment, not by mere executive order or act of Congress, or so the argument goes.
That view depends on reading the 14th Amendment as actually mandating automatic citizenship for anyone and everyone born on US soil, no matter the circumstances. Temporary visitors, such as tourists, students and guest workers, can unilaterally confer citizenship on their children merely by giving birth while here, is the claim.
That view has given rise to the cottage industry known as “birth tourism.” Worse, under this view, citizenship is automatic even if the parents overstay their visas and become illegally present in the United States. Worse still, such citizenship is automatic for children born of parents who were never lawfully present in the United States in the first place.
In a nation such as the United States, which is rooted in the idea that governments are formed based on the consent of the governed, the notion that foreign nationals can unilaterally confer citizenship on their children as the result of illegal entry to the United States (and therefore entirely without our consent) is a bit bizarre.
It rewards lawlessness, undermining the rule of law. It deprives Congress of its constitutional authority to determine naturalization power.
And it essentially destroys the notion of sovereignty itself, since a “people” are not able to define what constitutes them as a “people” entitled, as the Declaration of Independence asserts, to “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”
That the 14th Amendment settled the question without ever explicitly addressing it is even more bizarre.
The actual language of the 14th Amendment actually contains two requirements for automatic citizenship, not just one. “All persons born or naturalized in the United States” — that’s the birth-on-US- soil part — “and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It is that second requirement, “subject to the jurisdiction,” that is the source of much confusion today, because to our modern ear, that just means subject to our laws.
That is one meaning, of course, but not the only one, and not the one that the drafters of the 14th Amendment had in mind. For them, being merely subject to our laws meant that one was subject to our “partial” or “territorial” jurisdiction. It was a jurisdiction applicable to “temporary sojourners” — what we today call temporary visitors. It was not the kind of jurisdiction that was codified in the 14th Amendment. For that, a more complete, allegiance-owing jurisdiction was required.
We don’t need to speculate about this, as the authors of the 14th Amendment were asked directly what they meant (albeit not in the context of illegal immigration, since there were no restrictions on immigration at the time). When asked whether Native Americans would automatically be citizens under the clause, Sen. Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
And Sen. Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” And the “now” that he was referencing was the 1866 Civil Rights Act, which provided that “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 President Trump is not proposing to “amend” the Constitution by executive order. He is proposing to faithfully enforce the Constitution as written, not how it has erroneously come to be interpreted in the last half century. It’s long overdue.
John Eastman is a constitutional law professor at Chapman University