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  • The Myth of Birthright Citizenship

    Last month, Arizona lawmakers introduced legislation intended to invite legal review of the Citizenship Clause of the Fourteenth Amendment.  Other states are quickly following suit.  Why, after one hundred and fifty years of implementation, is this amendment so controversial?  Amendment XIV, Section 1 clearly states that “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.”  So doesn’t that mean that all children born in the United States (even to parents who are in the country illegally) are automatically citizens?  Where is the controversy?

    This, Edward Erler argues in the latest Constitutional Guidance for Lawmakers essay, is a fundamentally incorrect interpretation of the Citizenship Clause.  He draws attention to the often overlooked second part of the phrase, and explains that “all persons born or naturalized in the United States” does not equal ‘subject to the jurisdiction thereof’.  As John Eastman has stated, “it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.”  The second half of the phrase therefore is not simply repetition, but introduces a key distinction.

    The precise words of the Fourteenth Amendment express the very argument of natural law and citizenship grounded in consent expressed by the Founders.  Erler explains that by requiring not just the accident of birth, but also the conscious, exclusive allegiance that comes from being subject to the United States’ jurisdiction, the Founders rejected the notion of birthright citizenship they had left behind in England.   Birthright citizenship is not championed by the Citizenship Clause; rather, it has been “repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.”  Legal review of the current interpretation of this amendment is indeed in order.

    Posted in First Principles [slideshow_deploy]

    17 Responses to The Myth of Birthright Citizenship

    1. Joe, Austin says:

      Contrary to the last paragraph of this post, the Founders didn't draft the 14th Amendment to the Constitution. The 14th Amendment was adopted in 1868, long after the last of the Founders had died.

      • Juniper says:

        The last paragraph does not refer to our Founders authoring the 14th amendment. It refers to the "framers" of the amendment.

    2. Bobbie says:

      America(ns) is being taken advantage of. DUH! Think of the accommodations the American government provides to ILLEGAL immigrants THE FEDERAL GOVERNMENT WAS SUPPOSE TO BE PROTECTING AMERICA FROM. All at the expense of the tax payers. Accountability on all fronts!

      All immigrants have to get on their own two feet (off the government dole) and illegals have to come in the legal way!

    3. Michael Bryan, Tucso says:

      The 14th Amendment is not the basis for birthright citizenship. Common Law of Jus Soli (law of the soil) has been the foundation of citizenship in America since our founding. Start with a false premise, you get a false result.

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    5. Jamie, Aspen says:

      Retired Library of Congress historian Paul Madison points out many states and the District of Columbia enacted laws that denied citizenship to children born to "transient aliens" post 14A. See:


    6. Jerry, Berlin Center says:

      I concur and have presented the following comments before in this forum:

      The privilege of citizenship can no-longer be granted to children born in the United States when the mother is not authorized to be here legally under the jurisdiction of the United States. These children are here as illegally as the mother and, in my opinion, altering policy and law in this manner does not conflict with or require further amendment to the Constitution for several reasons.

      The words of the 14th Amendment indicate that birthright citizenship applies to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof”. A person who is here illegally and without the knowledge of the government of the United States, and who is in the very act of defying the laws of the United States, cannot and should not be considered under the jurisdiction of the United States.

      I have seen nothing in the record of the original congressional debate regarding the 14th Amendment that indicates that the originators were considering illegal aliens at the time of the amendment.

      Certain Supreme Court decisions that are often cited as supporting the traditional overly-liberal interpretation of the birthright clause actually do not address the situation of children born to illegal aliens in the United States.

      (1) The frequently cited case of United States v. Wong Kim Ark (1898) dealt with the citizenship of a child of non-citizen but legal Chinese immigrants. This ruling had importance in that it struck down unjust exclusion of Chinese immigrants based on race; however, I do not believe the legal status of the parents’ presence in the United States at the time of the birth of Wong Kim Ark was in question.

      (2) The case of INS v. Rios-Pineda (1985) is also often cited. This case, however, dealt with an illegal alien father fighting deportation, and contained no ruling regarding the citizenship of his children. One of the arguments presented by the plaintiff was that his deportation would subject his children, born in the United States to an illegal alien mother, to undue hardship (the anchor baby defense). In their ruling against the illegal alien father, the Supreme Court noted the children but did not rule that they were (or were not) citizens. The status of the children was not in contention in this case.

      (3) Another frequently cited case, Plyer v. Doe (1982), dealt with the education of children brought to the US as illegal aliens, but not born here. While the ruling in Plyler v. Doe may be seen to have bearing on the interpretation of the words “subject to the jurisdiction thereof” in the 14th Amendment, the decision was a 5-4 split of the Court, with the dissent indicating that the Court was overstepping its bounds and that the matter should have been resolved legislatively; in other words, as a matter of law or policy.

      It is additionally interesting that, in the Wong Kim Ark decision, the Supreme Court indicated that birthright citizenship of the 14th Amendment would, in fact, be excluded for “members of foreign forces in hostile occupation of United States territory”. While application of the term “hostile occupying force” may seem a bit harsh it is not unreasonable, considering that there are now in excess of 12 million illegal aliens (a number many times the larger than the combined US military forces) occupying the territory of the United States in defiance of our laws; and it is worthy to note that the Court was definitely allowing an exclusion of citizenship for the children of people who are present without permission and against the will of the people of the United States.

      There may be differing opinions on this issue, and legislative and judicial action will be required; but I think that a change of law in this matter should not require a change to the Constitution.

      If interested, please also refer to my article entitled Four Steps to Reasonable Immigration Reform presented at:

    7. Rob, South Carolina says:

      This is obviously a much debated topic. Even if you were to say that being born in the US, makes you a citizen, I would argue is something obtained by illegal means legal? My point is this, the illegal immigrants are obviously illegal on US soil. Their children, even if born in US territory should not have been here in the first place and therefore have no claim to US citizenship. If that is allowed than the benefits gained from other illegal acts (ie money from drug trafficking) should remain in the possession of the offender. This is just one man's opinion though.

    8. Paul427, North Plain says:

      A review is absolutely essential at this point, since it would be a vital link in the chain of efforts underway to stem the tide of nearly constant illegal alien infiltration of this nation. The concept of "procreation within the borders" is completely ridiculous! The context of the clause needs to be openly read, interpreted, and publicly reviewed along with any subsequent legislation to address and enforce the proper response of the law to this "evasion of intent of the law" by those who's thinking is not straight (to say the least). The celebration of such a misdirection of law and justice is only to the joy of the entitlement promoters (and illegals). If we cannot gain a consensus on the need for fiscal responsibility at this point in time, I fear we never will. How absurd that so many Democrats rely on a steady influx of illegal entitlement seekers to maintain power. A sweet deal for them personally – all they seem to feel that they need to do in response is maintain the irrresponsible levels of entitlement spending (at the expense of the tax payers and Republic) and blame the Republicans and Tea Partiers for any cutbacks. Who cares if the country goes bankrupt?! That's not their problem afterall! OUT THEY GO!!!

    9. CHWILLS, Sanford, NC says:

      There is no constitutional provision that allows the children of illegal aliens the right to U.S. citizenship, and this issue should be addressed along with the issue of the true meaning of Natural Born – our birthright as children of U.S. citizens.

      The requirement for our American “birthright” is to be born to two American citizens and anyone who doesn’t meet that requirement cannot be Natural Born. Likewise, anyone born on American soil to two parents who are both illegal aliens are illegal aliens also.

      When the Constitution was written, the term “Natural Born” actually meant an American citizen whose parents were both American citizens, and that differentiates a Natural Born citizen from a native born citizen. The intent of our founders in requiring future presidents to be the children of American citizens was to insure loyalty to America by eliminating foreign influence either through foreign birthright or parental influence.

      Furthermore, under British law in 1961, the children of British subjects, like Obama’s father, were automatically British citizens by birth regardless of where they were born. Under U.S. and British law, when Barry was born, he would have been born a British citizen. That was his birthright from his father, which precludes him from being classified Natural Born regardless of where he was born.

      By the same token, children born of two parents who are both U.S. citizens acquire Natural Born status at birth regardless of place of birth– just like John McCain. It’s our “birthright” as set down in the Constitution. Likewise, anyone born on American soil to two parents who are both illegal aliens are illegal aliens also.

    10. Bobbie says:

      Let's just get it right and make sure it's understood, accepted and respected by those of authority. Please, for those of you that want to protect the illegals suggesting they do not know the law, is funny. THEY KNOW crossing the border without documentation is illegal or they wouldn't be sneaking. Using pregnancy to gain access is pretty low of a person.

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    12. Bob, Iowa says:

      Birthright citizenship was the 'rule of law' before the U.S. was even a nation, as part of English Common Law, except for children born of slaves. All the 14th amendment did was to address the issue of citizenship for freed slaves and their children, and reaffirm was already was the 'rule of law.'

    13. David, Los Angeles says:

      The distinction is academic and I would argue irrelavent. The "subject to the jurisdiction…" language is unclear as evidenced by the fact that children of illegal immigrants are treated as citizens by Federal, State and Local governments and presumed citizens by the vast majority of Americans. While you may argue that an Amendment like the one being proposed by Arizona is redundant and unnecessary I would say that an Amendment is needed that is clear and unambiguous.

    14. Patrick, Canton, MI says:

      While I sympathize with the dilemma that "birthright citizenship" creates, I could not disagree with Professor Erler more. I predict that if this issue ever reaches the Supreme Court, the case will quickly be decided in favor of "birthright citizenship."

      The theory that "and subject to the jurisdiction thereof" somehow abrogates birthright citizenship is pure speculation. No Supreme Court is going to use that phrase to nullify the clear force and effect of the earlier "birth" phrase. A person can be subject to the jurisdiction of the United States without bearing "conscious, exclusive" allegiance to it. The theory that "subject to the jurisdiction" means something other than what it clearly states, such as "bear conscious, exclusive allegiance," is wholly without foundation. No provision of the Constitution states that a person must have "conscious, exclusive" allegiance to the United States to be a citizen of this nation. No court is going to interpret such subjective "jurisdiction" language to overcome the clear objectivity and force and effect of the "born" phrase. Contrary to an earlier comment, a person on US soil without its knowledge and yet defying US law is yet subject to its jurisdiction. Else, how would the FBI arrest a non-citizen drug smuggler or terrorist?

      While the reason for the addition of the "subject to the jurisdiction" clause may not be 100% clear, there are various rational explanations. For example, that phrase may have been included to make clear that a person born in the United States but located on a US ship at sea or on foreign soil on a US military base(horrors, Guantanamo Bay naval station) retains his citizenship. Or to clarify that an escaped slave born in a Southern State but located in a Northern State was yet a citizen of the United States no matter what the laws of the Southern state might say.

      Rather than engage in "stretching" speculation over what "subject to jurisdiction" means, a court is going to seek a "harmonious" interpretation that retains and does the least injury to both the "born" and "subject to the jurisdiction" phrases, i.e. will accept any "rational" explanation that will allow both clauses to stand — even if applied independently.

      The greatest weakness of the argument that birthright citizenship is a "myth" is that it relies on subjective interpretations of history. No court is going to rely upon tortuous interpretation of such incompletely documented and often-contradictory history to overturn objective language ("born or naturalized in the United States"). Notably, Justices such as Scalia and Thomas are going to rely upon what the Constitution says rather than some subjective interpretation of history. The argument is even more weakened by the fact that the history cited relates to the 1866 Civil Rights Act and to what Congress did or did not do with respect to Native American Indians, and not to the Constitutional provision itself.

      Congress and courts are likely to be much less harsh today (especially to Hispanic-Americans) than they were to Indians. If Elk v. Wilkins (1884) were tried today it is virtually certain that the focus would be on the location of Elk's birth rather than the jurisdiction — because Indians are no longer so unpopular, even perceived to have been widely denied their legitimate rights, perhaps even failed to provide or denied proper consideration of Elk's birthplace as the basis for his citizenship. And though Jacob Howard was 1 Senator, perhaps even the "framer" of the Constitutional provision, the real question is how the entire Congress understood that provision at the time it was adopted. Without unambiguous evidence that the entire Conress did not intend to adopt "birthright citizenship," that can be rationally deduced from the language adopted, no Supreme Court is going to overturn birth or naturalization as the sole basis for citizenship.

      Perhaps most important of all, conservatives ought to think very carefully about the ethics and political consequences of arguing against birthright citizenship. Citizenship is a right or status that inheres to an individual. Arguing that a young, innocent child lacks citizenship because of the illegal acts or failures of his parents seems like punishing one person because of the acts or omissions of another — and fosters unpleasant impressions of invidious discrimination because of race or national origin. Though I am strongly conservative, I believe such an argument would be rejected by the great majority of Americans — and I reject it as well. The right solution is to punish those who disobey the

      law — not their descendants. That principle, too, is enshrined in the "bill of attainder" language of the US Constitution. (The punishment may need to be fashioned — perhaps tempered or extended — to avoid punishing the innocent as well; I admit this is a challenge.)

    15. Brandy, Phoenix, AZ says:

      Common Law of Jus Soli worked well in the feudal system of midieval England during a time when populations were low which made obtaining more subjects very difficult. The Common Law of Jus Soli mandated that at the moment of birth one owed “true and faithful obedience” to the Crown. It wasn’t a birthright, it was a birth duty. Luckily, today we in America are far removed from those days and ways.

      Our 14th Amendment was written to rectify the situation that our freed slaves (people who were taken from their homes and families against their will) and their children were put in. It was not written for people who have CHOSEN to enter our country illegally or for their children.

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