Birthright citizenship is flatly unconstitutional

Because the current policy is that any child who is born here, even to an illegal alien, is automatically a citizen of the United States, pregnant illegal aliens by the thousands commit criminal trespass in order to give birth on U.S. soil. There is also a bustling business in birth tourism, where pregnant foreigners on tourist visas are hosted by a growing hospitality industry devoted to their comfort until the day of delivery – and U.S. citizenship – arrives.

All this has led to calls to amend our Constitution to bring this misguided and misdirected practice to an end.

But we do not need to amend the Constitution to fix this problem; a correct reading of the Constitution indicates that such children born on our soil are specifically excluded from citizenship.

The clause at issue is found in the 14th Amendment, which reads, “All persons born or naturalized in the United Statesand subject to the jurisdiction thereofare citizens of the United States…”

A plain reading clearly indicates that birthright citizenship is granted only to those who are “subject to the jurisdiction” of the United States when they are born on American soil. Illegal aliens and their children, by definition, are not subject to the jurisdiction of the U.S. That’s why they can be deported. Their children are no more subject to the jurisdiction of the U.S. than their parents are, and as little entitled to citizenship.

The “jurisdiction” clause was added to the 14th Amendment only after a lengthy debate. According to NumbersUSA, Sen. Jacob Howard of Michigan proposed the amendment because he wanted to make it clear that the simple accident of birth on U.S. soil was not in fact enough to confer citizenship.

Sen. Howard said the jurisdiction requirement is “simply declaratory of what I regard as the law of the land already,” an apparent reference to the Civil Rights Act of 1866, about which more in a moment.

In his debate, Sen. Howard said, “[T]his 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…”

The logic is inescapable. If the children of foreign diplomats, who are in this country legally, are not U.S. citizens by birth, how is it possible that children of illegal aliens could be?

The only Democrat to participate in the debate was Sen. Reverdy Johnson of Maryland. In debate, he said this about the meaning of this particular clause: “[A]ll persons born in the United Statesand not subject to some foreign Power– for that, no doubt, is the meaning of the committee who have brought the matter before — shall be considered as citizens of the United States.”

The 14th Amendment was passed in order to elevate the provisions of the Civil Rights Act of 1866 to constitutionally protected status and insulate it from legal challenge. The CRA of 1866 has a virtually identical clause in it, which reads, “[A]ll persons born in the United Statesand not subject to any foreign power,excluding Indians not taxed, are hereby declared to be citizens of the United States.”

This makes it particularly clear, for the children of those in Indian tribes were born on U.S. soil, but were not considered citizens under the Civil Rights Act of 1866 because they were subject to a foreign power, the sovereign Indian nation to which they belonged.

As George Beck writes, “‘[T]ribal’ Indians were purposefully excluded from citizenship. The drafters of the Fourteenth Amendment clearly defined ‘tribal’ Indians as ‘Indians not taxed,’ as not ‘subject to the jurisdiction’ of the United States.”

Ken Kuklowski puts it this way, “[T]he Civil Rights Act’s parallel language, ‘and not subject to any foreign power,’ instead shows the Jurisdiction Clause excludes all citizens of any foreign country. The Citizenship Clause was intended to overrule the most infamous Supreme Court case in American history—the 1857Dred Scottcase—and ensure free blacks born in America could not be denied citizenship. It was never designed to make a citizen of every child born to a foreigner.”

Since 1795, aliens have been required to renounce allegiance to any foreign power and declare allegiance to the U.S. Constitution to become a naturalized citizen. They are required to do so because such allegiance was never assumed or taken for granted for an alien born on American soil. For instance, our family has a framed copy of my great-grandfather’s renunciation of his allegiance to the Czar of Russia hanging on the wall of our living room. It was a prerequisite to his being granted full citizenship in the United States.

Anyone born here, on U.S. soil, whose parents owed allegiance to some foreign power, were not considered citizens of the U.S. by birth and should not be today.

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