Birthright Citizenship: Politics vs Rule of Law

We’ve all heard the stats: currently, only the United States grants birthright citizenship to illegal aliens and 8% of babies born in the US are so-called “anchor babies” born of illegal aliens. In and of itself, this doesn’t constitute a crisis, but, for many of us, it does illustrate how far we’ve strayed from the Constitution.

Like all babies, “anchor babies” too are sweet and cuddly, and deserving of mother’s love and society’s protection. But automatically conferring citizenship on babies of illegal aliens is an ideologically-motivated perversion not only of internationally accepted legal norms, but, much more importantly, of both the Constitution and the 14th Amendment as well.

By nimbly mischaracterizing the motives of birthright citizenship opponents, many in the media and blogosphere—to include attorneys who should know better-- have irresponsibly misrepresented the framers’ intent and have reduced the level of discourse on this legitimate constitutional issue to that of ad hominem, race-baiting, specious legal citations, contrived legal justifications, and mindless pandering. Shamelessly seeking ideological and political supremacy, to these people the Constitution and the rule of law mean absolutely nothing. And for a nation which once prided itself as being a “nation of laws”, that is inexcusable.

During an interview with Mr. Trump last night, what annoyed me greatly was Bill O'Reilly's characteristically bombastic--and wholly erroneous--claim that "the 14th Amendment says that any person born on US soil is a US Citizen. Period".  Poppycock! He couldn't have read the amendment at all to reach this specious conclusion. And the fact that even Judge Napolitano, a Libertarian jurist, a few days earlier asserted this revisionist and ignorant view is nothing short of bewildering and scary.  But, this does underscore just how flawed and fallible jurists and seemingly bright, well-informed talking heads can really be.

That said, for my own edification I decided to take the time to again review the actual words of the 14th’s framers, pertinent case law and the opinions of jurists and legal scholars on both sides of the question to determine the truth in this matter.

Here are my findings and conclusions:

First, while researching pertinent materials, I soon discovered that understanding the clear intent and meaning of the 14th Amendment was much simpler than anticipated. In fact, the meaning of the 14th was surprisingly straightforward. Lesson learned: if one simply abandons one’s ideological blinders for a moment and commit to an honest effort to objectively review a constitutional issue, clarity is nearly always one’s reward.

It also became apparent that from a strictly Constitutional standpoint, and despite Lindsey Graham’s initial assertion that a constitutional amendment is needed to outlaw anchor babies, aka birthright (jus soli) citizenship, I was unable to find convincing constitutional evidence that so-called anchor babies can legitimately and automatically acquire U.S citizenship. Thus, a simple act of congress--and most certainly NOT an amendment to the Constitution—in order to clarify the original intent and meaning of the 14th Amendment is all that is really needed.

To wit, introduced on April 2nd, 2009, and co-sponsored by 93 congressmen, inclusive of one lonely Democratic supporter, Mississippi’s Gene Taylor, HR 1868 (Birthright Citizenship Act of 2009) amends section 301 of the Immigration & Nationality Act to provide that a person born in the US is “subject to the jurisdiction” of the US for citizenship purposes if the person is born in the US of parents, one of whom is: 1) a US citizen or national; 2) a lawful permanent resident alien who resides in the US; or 3) an alien performing military service in the US Armed Forces.” And if one simply reviews the original meaning of the 14th Amendment one can easily see that there is absolutely nothing at all revolutionary about this bill's language. In any event, the bill failed.

Intended to protect the rights of emancipated Negroes, the 14th Amendment specifically provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

And as I very quickly learned, of central importance in this statement is the phrase “subject to the jurisdiction thereof”, something birthright citizenship proponents have consistently and very conveniently ignored.

To begin, Sen. Jacob Howard of Michigan, co-author of the 14th Amendment, expressly asserted that “this 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.” And it is in this plain-spoken construction birthright proponents somehow discover ambiguity or a totally different meaning. Amazing!
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Under Section 1992 of the US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”

In 1873, the US Atty Gen ruled the word “jurisdiction” under the Fourteenth Amendment to mean “the absolute and complete jurisdiction. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the US but only to a limited extent. Political and military rights do not pertain to them.”

Sen. Trumbell noted during the drafting of the 14th Amendment that it was the amendment’s goal to “make citizens of everybody born in the US who owe allegiance to the US,” and if “the negro or white man belonged to a foreign government he would not be a citizen.”


On March 1, 1866, Rep. James Wilson of Iowa, House Judiciary Committee, added that “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to conclude that every person born in the US is a natural-born citizen of such States, except that of children born on our soil (jus soli) to temporary sojourners or representatives of foreign governments.” This statement served to nicely clarify Sen. Howard’s construction above.

John Bingham, framer of the 14th Amendment’s first section, stated that Sec. 1992 of the Revised Statutes meant “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.”

And if we reach way back to our founders in search of a definition of citizens of a foreign power, Thomas Jefferson said “Aliens are the subjects of a foreign power.”

To a man, among the framers the premise behind “within the jurisdiction thereof” was that all children born to parents who owed no foreign allegiance were to be citizens of the US; thus, not only must a child be born on US soil (jus soli) but born of parents whose complete allegiance was to the US.

Subsequently, Sen. Howard further explained that “only thru expatriation, which could be accomplished thru law alone, and not thru any immigrant acting on his own outside the law—and certainly not by any act of birth alone—could an alien become a citizen.” This, of course, would mean that the alien/sojourner would need to affirmatively renounce his allegiance to his/her country of origin before s/he could be considered completely within the jurisdiction of the US.

Sen. Howard also stated the following: “…the word 'jurisdiction', as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, the executive, or the judiciary; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the US now.” In effect, he was saying that an alien may, by treaty arrangements with his country of origin, avail himself of the protection of the US, much as sojourning US citizens in the alien’s country of origin would avail themselves of that country’s protection, but that an alien's physical presence in the US would not render him/her under the "complete jurisdiction" of the US. Simple enough.

The rationale behind not granting automatic citizenship is based upon the fact that Indians could not be subject to the jurisdiction of the US because the US dealt with them through treaties. By logical extension, aliens sojourning in the US are extended privileges and protections by virtue of treaties in force with their countries of origin, much as American citizens are granted similar rights and privileges—but not citizenship--when sojourning in those countries. Logically, therefore, only if an alien voluntarily and affirmatively renounces his citizenship and expresses an intent to swear allegiance to the US may the alien, through operation of law (a formal naturalization process) be granted US citizenship. Thus, in a nutshell, since neither children of tourists/sojourners nor of diplomats born in the US can be US citizens, children of illegal entrants cannot be lawfully granted that privilege of US citizenship?

In 1867, George Yeaman, American Minister to Denmark, in his highly respected treatise on allegiance and citizenship and for whom the framers had great respect, asserted that “the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” Thus, dual citizenship was also a no-no. (Take note, BHO.)

To wit, P. A. Madison, a modern day master of constitutional analysis, points out that “since illegal aliens are unlawfully in the US, their native country has a proper and primary claim of allegiance on the child. Thus, the completeness of their allegiance to the US is impaired, which therefore precludes automatic citizenship.” Slam dunk obvious, I’d say.

Also, Rep. Aaron Sargent, a representative from California during the Naturalization Act of 1870 debates, said the 14th Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. Significantly, none of his contemporaries disputed that assertion.

Adding to this mix, here is a little case law since the 14th’s ratification.

In the Slaughterhouse Cases(1873), the Supreme Court observed that the 14th Amendment overturned the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction, citizens of the US; the ruling went on to point out “that [the 14th Amendment’s] main purpose was to establish the citizenship of the Negro” and that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, AND citizens or subjects of foreign states born within the United States", thus reinforcing Sen. Howard’s construction above. So, since they cannot be subject to US jurisdiction, children of citizens of foreign sovereignities and children of foreign ministers/consuls/ambassadors cannot be lawfully considered US Citizens. Makes perfect sense.

Then, in Elk v Wilkins (1884), the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians—because they were subject to tribal jurisdiction, not U.S. jurisdiction. In effect, the court essentially stated that the status of the parents determines the citizenship of the child, and not merely the fortuitous birth of that child on American soil. (Note: not until the Citizens Act of 1924 was U S citizenship granted to American Indians. As with many whimsical court rulings over the years, I was unable to understand the legal grounding for this reversal. Thus, it would seem that judicial arbitrariness is not an affliction peculiar to modern day American courts alone.)

In US v Wong Kim Ark (1889), the courts held that children born in the US of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the US and are carrying on business in the US, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of US territory, become a citizen of the US at the time of birth. As expressed in the minority opinion, this decision violated the 14th Amendment. But, in any case, how many new illegal aliens have permanent domiciles in the US and how many of them are carrying on business in the US at the moment of their child's birth on US soil? I suspect precious few. But note that in this case the parents were, unlike illegal entrants, legally present.

In Steel v Citizens for a Better Environment (1998), the court stated that “jurisdiction is a word of many, too many, meanings.” However, and as can be clearly seen above, Sen. Trumbell and, yes, Sen. Howard, 14th Amendment co-authors, had long ago provided a definition by declaring that “the provision is, that all persons born in the United States, and ‘subject to the jurisdiction thereof’’, are citizens. That means ‘subject to the complete jurisdiction thereof. What do we mean by ‘complete jurisdiction thereof'? Not owing allegiance to anybody else. That is what it means.” And this from the framers' themselves! (Clearly, majority jurists in the Steel v Citizens court didn’t bother to research the framers’ clear intent and meaning. And one must wonder if a neophyte, such as I, can easily deduce original meaning, why can't trained jurists? Could it be incompetence or do political agendas get in the way of constitutional law?)

Despite the clear meaning and intent of the 14th's framers, we fast forward to the somewhat enigmatic ruling in US ex rel. Hintopoulis v Shaughnessy (1982), which some bloggers have used to justify birthright citizenship. In that case, and out of whole cloth, somewhere in the ruling it asserted, almost in passing, that although a child born in the US to two illegal aliens was a US Citizen (????) that, nonetheless, “suspending the alien parents’ deportation based upon “the accident of birth in the US of their son would be to deprive others, who are patiently awaiting visas…” Thus, since the passing allusion to the legality of birthright citizenship, though gratuitous—and erroneous—was woven into this suspension of deportation decision, birthright proponents often blithely and excitedly cite this case to substantiate the legality of birthright citizenship. Grabbing at straws, I'd say.

Then, true to activist form, in Plyler v Doe (1982) the court, apparently without access to the 14th framers’ erudition and written words, mysteriously ruled 5-4 that there is “no plausible distinction” with respect to “jurisdiction” between resident aliens who entered the country lawfully and those resident aliens who entered unlawfully. Wowee! Clearly a yawning divergence from the framers’ clear meaning and intent. Seems judicial activism was as alive and well in 1982 as it is today.

To me, these two rulings which capriciously and arrogantly turned Thomas Jefferson and the framers of the 14th on their heads are clearly unlawful at worst, convenient contrivances at best.

When I explained all this on-line to an attorney who is also a strong proponent of birthright citizenship, this was her reply: “I disagree with your interpretation of the phrase ‘subject to the jurisdiction thereof'. The first rule of statutory construction is that we don’t look to the drafters’ intent if the words are plain and unambiguous…If the drafters meant to include some allegiance test, they would have. They didn’t.” That sort of revisionism, gobbledegook, willful ignorance and dishonesty is, folks, what this country is up against. My rejoinder was civil, but to the point: “It wasn’t MY lowly interpretation. It was the framers’ interpretation. But, ignore original intent and meaning? A living constitution is like having no constitution at all. We can merely make it up as we go along and continue to hand-off an increasingly irrelevant document to the next generation. While I sincerely hope this isn’t what you have in mind, at this juncture I can see there’s really nothing more to discuss with you on this or any other constitutional issues. How very sad.”

Finally, based upon what I now understand, we must be faithful to the 14th Amendment framers’ clear intent and meaning—surely a tall order with so many activists and social engineers infesting our courts these days. In the case of "birthright citizenship", Congress is constitutionally empowered to re-assert the original meaning of the the 14th Amendment, and that's precisely what it should do.

Gov. Brewer: Unwitting or Willing Victim?

Though the U.S. Constitution is of scant consequence in DC these days, Americans should remember that nullification continues to be a well-established and constitutionally justifiable remedy to federal overreach. But, a practical word of caution: only a determined act of nullification has any hope of success. (You may refer to my previous posts on nullification and the supremacy clause, or you may do your own research to substantiate that assertion.)

Now menaced by a seditious progressive legislative blitzkrieg in Congress, an imperial putative Presidency bent upon the "fundamental transformation of the United States", as well as a contagion of judicial activism stoked by subversive "living Constitution" ideologues, more than ever Americans must now more fully understand that our founders expressly espoused the right of states to nullify federal overreach at every turn. The framers also upheld the absolute right--indeed, the duty--of "we the people" to rebel against either federal or state usurpations of our individual rights to life, liberty, property and the pursuit of happiness. Thus, "we the people" are necessarily the ultimate arbiters in our republican system of government.

So, while I hail the 20-22 states who are currently striving to peacefully challenge Obamacare in the courts, we must be mindful that judges are political appointees who are often more apt to advance their insidious political agendas than to faithfully adhere to the rule of law. Like the "living Constitution" politicians who gave them life, too many of these jurists continue to blatantly ignore the U.S. Constitution as written by whimsically reinterpreting the Constitution's clear meaning to justify their own narrow political philosophies. And this is manifestly NOT what our founders had in mind.

To our founders, a tyrannical, unchecked judiciary is every bit as loathsome and dangerous to our republican form of government as are an unrestrained Congress or Executive. And right now, the Republic is getting slammed on all three political fronts. And this is precisely why nullification, or simply the threat of nullification, peaceful resistance, non-compliance or open rebellion should never, ever be taken off the table if our Republic is to survive.

That said, what's the real deal with Arizona? Frankly, I'm somewhat puzzled by the goings-on there.

Confronted by gross federal abdication of its constitutional responsibility to defend Arizona's border with Mexico, Governor Brewer, is, with the advice of the state's adjutant general, entirely within her constitutional rights to call up the state militia to police the border and thereby protect the citizens of Arizona; however, for the moment, anyway, she has allowed Arizona to be sucked into the tainted and unreliable court system to achieve protection for Arizonans. Why? Never mind that the 9th Circuit Court of Appeals is a hotbed of judicial left-wing activism, and never mind that Arizona's laborious, time-consuming, and costly judicial appeals might well fail to achieve justice. Which leads me to ask this question: if Arizona loses her appeals, does the Governor obsequiously capitulate to judicial fiat, or does she do the right thing and simply enforce the Constitution of Arizona?

To me, the best defense is a good, clean, determined constitutional offense. Such will throw one's lawless adversaries, in this case the feds, completely off balance. The truth is that neither a formal nullification process nor a long dragged out judicial fight are necessary--or proper--to enforce SB 1070, in and of itself one of the most innocuous and insubstantial immigration laws in the country.

But, for me, here's the mystifying wrinkle in this strange saga. We all know Obama is playing politics with this "issue", but, alas, is Brewer guilty of political gamesmanship as well? And here's why I ask...

Since 2007, Missouri has passed a series of laws which serve to comprehensively deal with the illegal invasion of the state. Reportedly, it has worked wonders. Most recently, on July 6th, Gov. Blunt signed into law legislation which 1) bars the state from issuing driver's licenses to illegal aliens or to recognize licenses issued by other states to persons unlawfully in the United States; 2) imposes criminal penalties for those assisting illegal aliens in obtaining driver's licenses; 3) prhohibits the creation of sanctuary cities by stripping state funding and grants from any municipality that attempts to enact sanctuary policies; 4) requires public employers, including state contractors, to verify the work authorization of all employees through E-Verify; 5) requires government agencies to verify the legal status of applicants before providing public benefits; 6) imposes criminal penalties on individuals convicted of transporting illegal immigrants for exploitive purposes; 7) requires law enforcement to verify the legal immigration status of every individual presented for incarceration and to release to the Dept. of Homeland Security all persons determined to be in the U.S. unlawfully; 8) provides penalties for employers who knowlingly hire illegal aliens, including suspension of business licenses, permits and exemptions; 9) illegal aliens are barred from enrolling in all public universities in the state. Also, in 2007 a constitutional amendment was adopted by referendum which made English the official language of all governmental proceedings in Missouri. Thus, in Missouri everything--and so, so much more--that Arizona is seeking in its own immigration laws is already being successfully enforced with no federal law suits nipping at their heels either. So what gives?

The viability of Missouri's immigration laws suggests to me that Arizona has, for some unknown reason, allowed itself to be needlessly used and victimized by the White House and its radical left wing minions around the country. We know that the high profile federal suit against Arizona is but a shameless self-serving ploy intended by the White House to curry favor with Latino voters. But with Missouri's immigration laws as brilliantly clear examples of what can legally be done at the state level, doesn't Gov. Brewer know she can avoid all the expense and tumult by simply enforcing SB 1070? So, I have to ask just who's gaming whom? Is the Governor really that inept, clueless, weak-kneed and spineless? Like, just what is going on?

To me, it is clear that Arizona is wasting valuable resources defending itself in this matter. The state simply doesn't need federal consent or cooperation to implement SB 1070. So, unless Gov. Brewer is playing politics with Arizona voters, she should get on with it and immediately enforce the law, anemic though it is. Case in point: also elected by the people, Sheriff Arpaio, a fellow Arizonan official, is dutifully enforcing immigration laws with virtual impunity. So why can't the entire State of Arizona do so as well? Like, what will the Administration do? Invade? Not even they are that stupid or imperial--yet. And what can lefty Judge Bolton or the 9th Circuit Court of Appeals do? Answer: NADA! Why? Because when a state asserts its constitutional rights, it invariably prevails. And on this notorious SB 1070 non-issue, who's going to go to war over it? Certainly not the feds. They wouldn't have a consitutional leg to stand on, and popular opinion would effectively checkmate the White House and its lawless judicial minions in any event. So, in the case of Arizona, a formal nullification process is simply not needed to get the job done and to stanch the needless bleeding.

Knowing that the White House will do nothing to jeopardize its standing with Latino voters, and absent Arizona taking the appropriate action, Arizonans can count on being continually victimized for a long time to come. But, if Arizonans are truly determined to protect themselves, they need to do just that and move on. Frankly, I'm wearying of the hand-wringing and needless melodrama. Arizona must simply do what it needs to do to protect its citizens. Wasting valuable time and resources on costly and unnecessary appeals is utterly nonsensical. Arizona should stop being the White House's political football. If the Governor simply asserts Arizona's rights, the whole charade, the Obama thuggery, will come to a screeching halt. And if Arizona needs donations to compensate for any loss in federal funding, or to pay for enforcement and/or the militia's call-up, the Governor needs but to ask and millions from around the country will pour into Arizona's coffers.

Finally, if you really want to resolve this issue, Governor, clarity of purpose, leadership, determination, principle, constitutional integrity, and political courage are all that is needed. Or is there something else going on you're not telling us?