In the continuing political battle over immigration in the United States, perhaps nothing is more contentious — and misunderstood — than the 14th Amendment, which many politicians say confers automatic citizenship on the children of illegal aliens. It doesn’t.
The 14th Amendment is one of the so-called “Civil War amendments” that were designed to settle the still-uncertain status of blacks. The 13th Amendment placed an official end to slavery into the Constitution, and the 14th was ratified in 1868 to confer citizenship on blacks as a condition of readmission to the Union for the rebel states.
The doctrine of “Birthright Citizenship” comes directly from Section 1:
“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.”
That’s the clause that leads most of our elected officials to conclude that if foreigners sneak into the United States and have a baby here, the baby is a citizen by birthright. Rep. Zoe Lofgren, (D.-Calif.), who serves on the House immigration subcommittee, says it would take a Constitutional amendment to deny citizenship in such cases. On my own radio program, Rep. John Carter and Sen. John Cornyn — both Texas Republicans and both former judges — told me essentially the same thing.
Certainly, the myth is perpetuated by the immigrant rights lobby and by Latino organizations such as the National Council of La Raza. To those groups, the 14th Amendment serves a valuable purpose. It provides many illegals with citizen children, often called “anchor babies” who can take advantage of social services and who can later sponsor their parents for legal status.
It’s a good deal for illegal aliens. But it makes the term “temporary worker program” somewhat silly since many of those “temporary” workers will get busy having children for the obvious benefits.
But the realities of the 14th Amendment fly in the face of what most members of Congress seem to think.
The major intent of Section One was to overturn the ruling of Dred Scott v. Sanford, which had denied citizenship to blacks — even freed ones. The amendment did that by making U.S. citizenship take precedence over state citizenship. That meant that the states no longer had the power to withhold citizenship.
The 14th Amendment was, in part, a way to place much of the Civil Rights Act of 1866 into the Constitution. This act had carried much of the same language that ended up in Section 1, but some language about “excluding Indians not taxed” was left out. Sen. Jacob Howard, who wrote the “Citizenship Clause,” was adamant that it did not make Indians citizens if they maintained their tribal relations.
So, according to the author of the clause, birth inside the United States was not, by itself, enough to confer citizenship. The word “jurisdiction” in the clause was seen to mean more than just being subject to our laws — but “exclusive” allegiance to the United States. By that reasoning, the authors of the amendment made it clear that birthright citizenship was not to be conferred on foreigners, aliens or children born in the United States to families of ambassadors.
Indeed, the old British concept of birthright citizenship was much discussed — and rejected — by Sen. Howard and others during debate over the Expatriation Act of 1868.
Furthermore, in Elk v. Wilkins in 1884, the Supreme Court ruled that a native born Indian could not become a citizen of the United States merely by renouncing allegiance to his tribe. The Court ruled there would still need to be some type of action or assent on the part of the United States. In 1870, that’s exactly what happened. The Congress decided that it would extend offers of citizenship to certain Indians, and that Congress could properly decide who was under the “jurisdiction” of the United States. The Congress did this by using specific powers granted under Section 5 of the same amendment.
Then, in 1898, the Supreme Court heard the case of United States v. Wong Kim Ark and interpreted the 14th Amendment to mean more of a common-law definition of birthright citizenship. But even so, Chief Justice Melville W. Fuller dissented partially on the grounds that the ruling went against the original intent of the amendment’s authors. Under the ruling, children of legal immigrants were automatic citizens.
But what about children of illegal immigrants? To this day, there has been no case before the Supreme Court that would affirm birthright citizenship for them. And there is precedent, under Section 5, that Congress has the power to make that decision.
Few nations today — none in Europe — confer a birthright citizenship. Whether the United States should is a matter of deep political division. However, no amendment is necessary since Congress is fully empowered by the Constitution to make that decision.