Birthright Citizenship is not Constitutional

Hans von Spakovsky for The Daily Signal, asserts from detailed research that President Donald Trump’s announcement Tuesday that he is preparing an executive order to end birthright citizenship is fully within the intent of the Constitution.

Spakovsky notes, “It would face a certain court challenge that would wind up in the Supreme Court, but the president’s view is consistent with the view of the framers of the amendment.” 

Spakovsky writes in part:

“…The president is correct when he says that the 14th Amendment to the Constitution does not require universal birthright citizenship.

Contrary to popular belief, the 14th Amendment doesn’t say that all people born in the U.S. are citizens. It says that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof’ are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of ‘birthright’ citizenship.

“Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. The fact that tourists or illegal immigrants are subject to our laws and our courts if they violate our laws means that they are subject to the territorial jurisdiction of the U.S. and can be prosecuted. But it does not place them within the political ‘jurisdiction’ of the United States, as that phrase was defined by the framers of the 14th Amendment.

“This amendment’s language was derived from the 1866 Civil Rights Act, which provided that ‘all persons born in the United States, and not subject to any foreign power,’ would be considered citizens.

“The amendment was intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction. Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that ‘subject to the jurisdiction’ meant not owing allegiance to any other country.

“In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude ‘children of ministers, consuls, and citizens or subjects of foreign States born within the United States.’

“This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to all people born in America, no matter what the circumstances of their birth, and no matter the legal status of their parents.”

Click here to read more from The Daily Signal.

About the author: Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.

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