I have read arguments by liberal lawyers that are sheer nonsense. The liberal establishment and their law school professors express their pseudo-political but liberal view of the Constitution. They argue that illegal aliens’ children who are conceived in the U.S. are citizens by birthright. This is a fundamentally flawed argument that flaunts the very purpose of the trilogy of amendments—the 13th, 14th, and 15th—whose purpose was the reconstruction of the South after the Civil War had ended.
There was no intent to make citizens of illegal immigrants’ children.
Those lawyers are reading more into the 14th Amendment then even Congress intended. As a matter of fact, Congress may, in support of the 14th Amendment, make specific provisions to deport these so called “dreamers” that the liberals want to be able to vote.
The children are nationals of the country where the parents originated. Merely being a resident of the U.S. and even having been born here does not make one a U.S. citizen any more then a child of a U.S. citizen born in France, Germany or the UK would automatically be a citizen of that country.
Obviously, these lawyers have not read the legislative or the Supreme Court history of the 14th Amendment. Or, like liberals in general, they won’t accept either the facts or the law when it goes against their position.
The 14th Amendment is part of a trilogy of amendments that dealt with the emancipated slaves.
The 13th Amendment outlawed slavery in the United States, the 14th Amendment made them citizens, and the 15th Amendment gave them the right to vote. These are known as the Reconstruction Amendments.
But what is a little propaganda among readers?
The 14th Amendment, Section 1 reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside, no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States.”
The 14th Amendment to the United States Constitution passed Congress by a two-thirds majority on June 16, 1866 (without support of the Southern states) and was ratified on July 9, 1868, by three quarters of the states; it granted citizenship to “all persons born or naturalized in the United States … who are subject to the Jurisdiction thereof.” The Amendment was intended to address former slaves recently freed.
As numerous court decisions have demonstrated, it did not include aliens or other people who were citizens of a foreign state.
An Act of April 9, 1866 established for the first time a national law that read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”
Rep. John A. Bingham (Jan. 21, 1815-March 19, 1900), the chief architect of the 14th Amendment’s first section, said this national law (Section 1992 of the U.S. Revised Statutes) was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
Sen. Lyman Trumbull (October 12, 1813-June 25, 1896), who was the author of this national law, said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.”
The point here is that aliens renounce their allegiance to other countries and pledge their allegiance to the United States for purposes of becoming naturalized! Their children do not become citizens merely by birth in the United States unless the parents are already citizens. The so-called dreamers remain citizens of Mexico or the country of their birth parents.
Sen. Trumbull goes on to declare: “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.”
In pleadings in federal court, a plaintiff, in order to invoke jurisdiction of the court, must allege that he or she is a citizen of the United States and a resident of a particular state. Without this jurisdiction statement, the federal court has no jurisdiction over the case and it will be struck upon request of the opposing party or the court sua sponte (on its own).
The Supreme Court had earlier discussed the meaning of the 14th Amendment’s citizenship clause in the Slaughterhouse cases (83 US 36 ) and noted, “[t]he 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.”
Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power. The United States Attorney General (who was a Republican senator involved in the adoption of the 14th Amendment in 1866) in 1873 ruled the word “jurisdiction” under the 14th Amendment to mean as follows:
“The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. … Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them” (14 Op. Atty-Gen. 300).
In Elk v. Wilkins, 112 U.S. 94, the court was specifically asked to address “subject to the jurisdiction thereof,” and held it meant as follows:
“The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
The framers, the Attorney General, and the Elk court all agreed that “subject to the jurisdiction thereof” refers to political attachment, not transient individuals who are allegiant to another country and are in the US illegally.
This is a position that has gained a lot of traction during the 2016 presidential debate. The pro and con positions are speculative, as there has been no concrete position paper as herein laid out for the public’s review and consideration.
Those who support the deportation of all illegal aliens and their children, whether born in the U.S. or otherwise, support the correct constitutional view of the subject.