One of the most pernicious distortions of the plain meaning of the Constitution is the conceit that U.S. citizenship automatically belongs to anyone born in America.
It doesn’t.
A correct interpretation and application of the 14th Amendment make this clear. This amendment, ratified in 1868, was enacted for one simple purpose: to grant citizenship to former slaves who had been born on American soil. The 13th Amendment abolished the institution of slavery, and the 14th Amendment granted American citizenship to the emancipated slaves. Citizenship had been denied them by the dreadful Dred Scott decision of 1857.
Here’s how the first sentence of the 14th Amendment reads (emphasis mine throughout):
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.
It’s not enough simply to be born on U.S. soil. One must also “be subject to the jurisdiction” of the United States when it happens. No child born to illegal aliens is subject to the jurisdiction of the U.S. for the simple reason that his parents aren’t.
This is why the children of diplomats, children born in America, are never considered citizens by birth. Because their parents are not subject to the jurisdiction of the United States, neither are they.
The logic is inescapable. If the children of foreign diplomats are not U.S. citizens by birth, how is it possible that children of illegal aliens could be?
This is not complicated. Illegal aliens by definition are not “subject to the jurisdiction” of the United States. They, like diplomats, are “subject to the jurisdiction” of their homeland. Illegal aliens are called “illegal” aliens for the precise reason that they are not subject to the jurisdiction of the United States, which is why they can be deported once apprehended. Legally and constitutionally, their children are no more “subject to the jurisdiction” of the U.S. than their parents are.
Daniel Sobieski points out that Rep. John Bingham of Ohio, considered the father of the 14th Amendment, explained the language of the amendment this way: “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 [sic] itself a natural born citizen…”
The “jurisdiction” clause was added to the 14th Amendment only after a lengthy debate. According to NumbersUSA, Sen. Jacob Howard of Michigan proposed the amendment because he wanted to make it clear that the simple accident of birth on U.S. soil was not, in fact, enough to confer citizenship.
Sen. Howard said the jurisdiction requirement is “simply declaratory of what I regard as the law of the land already,” an apparent reference to the Civil Rights Act of 1866 (more about that in a moment).
In his debate, Sen. Howard said, "[T]his 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...”
Here is how Ken Kuklowski puts it (emphasis mine):
[T]he Civil Rights Act’s parallel language, “and not subject to any foreign power,” instead shows the Jurisdiction Clause excludes all citizens of any foreign country. The Citizenship Clause was intended to overrule the most infamous Supreme Court case in American history–the 1857 Dred Scott case–and ensure free blacks born in America could not be denied citizenship. It was never designed to make a citizen of every child born to a foreigner.
The United States is one of only two developed countries in the world that still bestows citizenship on every person born on our nation’s soil. Having a child become a U.S. citizen is the greatest reward possible for someone who enters the country illegally. Such status is worth hundreds of thousands of dollars in free education and benefits, not to mention the incalculable value of our country’s security and freedoms. Historically, there was bipartisan enthusiasm for dumping this program; even Democrat Harry Reid had proposed its termination.
Sobieski also points out that if everybody understood that citizenship was granted by birth alone, why did it take an act of Congress in 1922 - 54 years after the ratification of the 14th Amendment - to grant citizenship to American Indians, every one of whom had been born on American soil?
The 14th Amendment was passed in order to elevate the provisions of the Civil Rights Act of 1866 to constitutionally protected status and insulate it from legal challenge. The CRA of 1866 has a virtually identical clause in it, which reads, “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
This makes it particularly clear, for the children of those in Indian tribes were born on U.S. soil, but were not considered citizens under the Civil Rights Act of 1866 because they were subject to a foreign power, the sovereign Indian nation to which they belonged.
Since 1795, aliens have been required to renounce allegiance to any foreign power and declare allegiance to the U.S. Constitution to become a naturalized citizen. Such allegiance was never assumed for an alien born on American soil. For instance, we have a framed copy of my great-grandfather’s renunciation of his allegiance to the Czar of Russia hanging on the wall of our living room. It was a prerequisite to his being granted full citizenship in the United States.
Anyone born here, on U.S. soil, whose parents owed allegiance to some foreign power, were not considered citizens of the U.S. by birth.
The Heritage Foundation estimated some time ago that the average illegal alien consumes $32,000 per year of welfare benefits while contributing but $10,000 to the economy. The cost of illegal immigration, especially when chain migration is added to the mix, is staggering, and it’s made worse by dangling the carrot of lifelong citizenship for the children of border trespassers.
It’s no wonder that “birth tourism” is a thing. Birth tourism is when pregnant women from all over the world time a trip to the U.S. just to give birth to their child on American soil.
To get rid of birthright citizenship, we do not need to amend the Constitution. We only need to apply it. And the sooner, the better.
