The Original Intent of the 14th Amendment – Part 2 of Birthright Citizenship and the 14th Amendment

Published on July 23rd, 2011

This is Part 2 of a series of articles examining the 14th Amendment, particularly with respect to the current misinterpretation of the Amendment giving birthright citizenship to children born in the United States to illegal alien parents. The actual content of the 14th Amendment was discussed in Part 1 of this series: "Overview of the 14th Amendment."

The 14th Amendment to the United States Constitution was passed by Congress and then ratified two years later on July 9, 1868, immediately after the American Civil War. It addressed pertinent issues resulting from the war: equal protection, voting and apportionment, citizenship, slavery, and who may hold public office.

At the time when the Fourteenth Amendment was ratified, the United States still had a wide-open frontier and did not limit immigration. As there was no immigration law, there were no illegal immigrants and citizenship for children of immigrants was not an issue. Since the United States had no formal immigration policy at that time, the authors of the 14th Amendment envisioned no need to explicitly address immigration in the Amendment.

Post-Civil War reforms focused on the terrible injustices of slavery. The 14th Amendment was ratified to protect the rights of native-born Black Americans, whose rights as recently-freed slaves were being denied. The Amendment was written to prevent state governments from denying citizenship to Blacks born in the United States.

Senator Jacob Howard clearly spelled out the intent of the 14th Amendment in 1866, which was to define citizenship. He stated:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

The correct interpretation of the 14th Amendment is quite simply that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

The Amendment's key phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. When parents are unlawfully in the United States, their native country has a claim of allegiance of a child born to those parents. The completeness of their allegiance to the United States is therefore impaired, which precludes automatic citizenship.

The US Supreme Court confirmed this interpretation of citizenship over a century ago in the so-called "Slaughter-House cases" [112 US 94 (1884) and 83 US 36 (1873)]. In the notable 1884 Elk v.Wilkins case, the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States."

In the decision, the Court firmly stated that the status of the parents determines the citizenship of the child. The decision stated that the American Indian claimant was considered not to be an American citizen because the law required him to be "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 direct and immediate allegiance." (Congress subsequently passed a special act to grant full citizenship to American Indians, who had not been citizens even through they were born within the borders of the United States.)

Based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction in order to qualify children for birthright citizenship. In other words, they must be United States citizens.

Another ruling in 1889 "Wong Kim Ark" was based strictly on the 14th Amendment. In this decision, the Supreme Court case again affirmed the status of the parents to be crucial in determining the citizenship of the child.

The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. It did not.

Rather, it determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14th Amendment.

Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the 14th Amendment and the post Civil War Reconstructionist period in which it was ratified. The authors of the Amendment never intended to use the 14th Amendment to grant citizenship to illegal aliens as is being done today.

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