Does the Fourteenth Amendment need to be repealed to end birthright citizenship?

[Cord Byrd]

Posted on LibertyLegalAlliance.com

Two prominent Republican Senators (one who ran unsuccessfully for president and the other whose name some say rhymes with amnesty) have recently suggested that they may consider repealing the Fourteenth Amendment to end birthright citizenship of children born to people illegally in the United States. Section I of the Fourteenth Amendment states, ” 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.” When interpreting Amendment XIV, the confusion, for politicians and pundits, lies in the highlighted phrase above. Some claim that this phrase means that anyone physically present in the United States is subject to its jurisdiction, therefore if one is born in the country they are citizens regardless of their parents’ immigration status. Instead of giving you my opinion I will provide that of the men who drafted, debated and ratified the Amendment.

Senator Howard Jacob of Ohio drafted the Citizenship Clause and insured his fellow Senators that the language did not include Indians who maintained their tribal relations since they were not subject to the jurisdiction of the United States. The Chairman of the Senate Judiciary Committee, Lyman Trumbull, stated, ” subject to the jurisdiction thereof” meant “not owning allegiance to anybody else.” He elaborated further stating that the language meant “subject to the complete jurisdiction of the United States.”

Complete jurisdiction means allegiance to the United States and is broader than merely being subject to the laws of the nation or state, or subject to the jurisdiction of its courts. Therefore, since illegal aliens are still citizens of their own country, although physically in ours, they do not and cannot owe legal allegiance to the United States. While they are subject to the laws of our country and courts in criminal and civil matters, the “complete jurisdiction” of the country does not extend to their children for the purpose of having the privilege of being an American citizen by birth, until the parents have given allegiance to the United States.

On the subject of allegiance and jurisdiction Senator Howard opined that complete jurisdiction, “will not include, of course, persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States.” Not being an advocate of a living and breathing Constitution, I may be wrong, but it appears reading the statements of the author and supporters of the Amendment, that they did not intend to confer birthright citizenship to “foreigners and aliens,” (their terms not mine) regardless of immigration status. Is there any doubt that the States would not have ratified the Fourteenth Amendment if they thought anything to the contrary?

I recently heard another prominent Senator, who also ran for president and I believe served in Viet Nam, state that the Supreme Court has settled this issue and that the children born to those illegally in the United States are citizens. This is incorrect. Why should I expect politicians who do not read their own legislation to read the writings of another branch of government like, for instance, opinions of the Supreme Court. In United States v. Wong Kim Ark (1898) the Supreme Court (probably incorrectly knowing the opinions of Sen. Howard and Trumball) held that Amendment XIV conferred birthright citizenship on children of legal residents of the United States. Despite Senator “I’ll dock my yacht in another state to avoid taxes” statement to the contrary, the Supreme Court has never explicitly held that the Fourteenth Amendment commands conference of birthright citizenship on the children of illegal aliens.

Contained within the Fourteenth Amendment is the constitutional authority necessary to resolve this quandary without repealing the Amendment. Section five of the Amendment states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Seems simple enough, just pass a law defining birthright citizenship and who is entitled to it. The law could be drafted in an afternoon and would probably fit on half of a sheet of paper. Pardon my skepticism, but the good Senators must know they have this authority. Heck, they pass laws all the time with no Constitutional authority at all, so why do they ignore it when they do have it. Perhaps calling for the repeal of the Amendment is red meat for the rabble without actually having to solve the problem?

This article only covers one aspect of the perplexing Fourteenth Amendment. For the truly intrepid I recommend The Adoption of the Fourteenth Amendment written in 1908 by Horace Edgar Flack. It is somewhat dense in places, but chronicles in great detail the debates in both Congress and the States, before, during and after ratification. Until I read that book I did not fully understand how the Fourteenth Amendment forever altered the idea of federalism envisioned by the Founders, and laid the groundwork for the current leviathan we lovingly know as the federal government.