Do the 5th District congressional candidates understand the fallacy of birthright citizenship?
by: Michael Del Rosso

A recent Daily Progress story reports that no 5th District candidate back repealing the 14th Amendment. Let’s hope that is the case, since such an initiative is ill advised and unnecessary.

While the article reports various platitudes and cross accusations by the candidates, it never addresses the issue of “birthright” citizenship and the 14th Amendment, the supposed subject of the article.

Left unclear is each candidate’s position on America’s current policy of “birthright” citizenship for persons born to foreigners (illegal aliens, tourists, etc.).

The reader is also left to wonder what any candidate against “birthright” citizenship might propose to do to correct the present situation, or if they even understand the facts of the issue.

This is shame because the issue is not that complicated.

Specifically, America’s present practice of granting broad “birthright” citizenship is mistaken and based upon ignorance regarding the original intent and language of the 14th Amendment. Overlooked is the 14th Amendment’s requirement that citizenship is contingent that persons be not only born in the United States, but be “subject to the jurisdiction thereof.

What does “subject to the jurisdiction” mean? The history and original intent of this matter are clear. My Claremont Institute colleague Dr. Edward J. Erler pointed this out in his 1997 testimony before the US House Subcommittee on Immigration and Claims (http://judiciary.house.gov/legacy/6042.htm):

It is my considered opinion that Congress has authority under Section 5 of the Fourteenth Amendment to define the jurisdiction of the United States. Indeed, it is my contention that Congress has exercised that power on many occasions, most recently in the Immigration Reform and Control Act of 1986.

Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the “jurisdiction of the United States”:

[E]very 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.

Clearly, the author of the citizenship clause intended to count “foreigners,” “aliens,” and those born to “ambassadors or foreign ministers” as outside the “jurisdiction of the United States.” Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent. This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive “their just powers from the consent of the governed.”

While it is apparent that political opportunists like John Boehner and Lindsey Graham, as well as their Progressive comrades in both parties, have a poor understading of, if not disdain for, American principles and the Constitution, we cannot discount that they suggest a constitutional amendment solely as an obfuscation.

They may not know that an amendment is unnecessary, but they do know that an admendment is unlikely to be enacted in a timely fashion, if at all. Such delaying tactics benefit their true objective, “comprehensive” immigration reform. For the uninitiated, “comprehensive” is the code word for granting citizenship to tens of millions of illegals with the hope that the majority will end up in a government-dependant underclass exploitable  for crass political gains.

If Americans want to remedy the problem of millions of children of illegal alliens claiming “birthright” citizenship (and we should), all Congress needs to do is pass legislation defining “jurisdiction.” And they should do so with deference and reference to the clear original intent of the 14th Amendment’s author, Senator Jacob Howard. Problem solved.

If judges fail to uphold legislation crafted with a clear foundation of 14th Amendment original intent, then Congress should exercise another of their powers, judicial impeachment. Maybe then we might one day have a judiciary which does respect original intent and which does not legislate from the bench.

America’s broad interpretation of “birthright” citizenship presents a multi-billion dollar liability to our already bankrupt socialist welfare state. This has been true for decades. And for decades legislators and administrations from both parties could have clarified the issue at any time. Yet they did not. It is high time that we no longer tolerate such incompetence, lassitude and dereliction from our elected officials.

Michael J. Del Rosso is a Research Fellow in National Security Policy, The Claremont Institute; and a Senior Fellow for Homeland and National Security, The Center for Security Policy

4 COMMENTS

  1. In regards to Senator Howard’s intent, del Rosso conveniently omits to mention that black citizenship and not immigration was the issue of the day, that some senators voting for the bill did so believing it conferred citizenship on all children born in the U.S., and that the Supreme Court ruled against del Rosso’s interpretation as far back as 1898 in United States v. Wong Kim Ark 169 U.S. 649.

    In other words, there was not one original intent but conflicting intentions, and after originally siding with Howard’s view, the Supreme Court has several times since overruled it.

    Really, this cherry-picking of history and the Constitution to find support for political aims (a practice both sides engage in) is laughable, not principled. And the notion that liberals and in this case Republicans, no less, are motivated to grant citizenship purely by a desire for political power, is an example of the paranoia and lack of charity in which the Religious Right excels. Save American fetuses! Expel Mexican babies!

  2. Ken, I do not “conveniently omit” nor “cherry-pick” anything, as an 800 word editorial is not a thesis. But since you brought it up, you failed to mention that U.S. v. Wong Kim Ark HAD NOTHING TO DO WITH ILLEGAL ALIENS, which is what the editorial is discussing.

    A clear reading of Wong, both majority and dissenting opinions, makes that clear. Additionally, if you bothered to read the link I supplied to Ed Erler’s 1997 testimony before the House Subcommittee on Immigration and Claims, you would have seen that Ed did elaborate on Wong; specifically:

    “Chief Justice Fuller remarked in his dissenting opinion in United States v. Wong Kim Ark (1898), that in the American Revolution “when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the colonies, in derogation of the principles on which the new government was founded, was abrogated.” It was emphatically the case, Fuller rightly argued, “that the rule making locality of birth the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.” Indeed, the consensual basis of citizenship, so far from creating a permanent and indissoluble allegiance to the sovereign, maintains “the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation.”

    The majority decision in Wong Kim Ark failed to make an adequate case for American adoption of the English common law basis of citizenship. Wong Kim Ark’s parents were legal residents of the United States but were rendered ineligible for citizenship by both statutes and treaty; and they still maintained their allegiance to China. The Court nevertheless held wrongly in my view that Wong Kim Ark, having been born within the territorial limits of the United States, had birth-right citizenship. The majority opinion failed to see that the English common law of birth-right citizenship was not only contrary to the principles of the founding, but had been explicitly rejected by the fourteenth amendment and the Expatriation Act. In any case, there has never been a Supreme Court opinion holding that the children of illegal aliens are entitled to American citizenship by virtue of their birth within the geographical limits of the United States. Jurisdiction is not a geographical concept; it is a matter of political allegiance. Birth-right citizenship has no place in republican government; it is the relic of monarchy and should be recognized as such once again by Congress. “

    That Ed disagrees (as did Chief Justice Fuller) with the majority decision of Wong does not distract from the fact that there has never been a Supreme Court ruling that children of illegal aliens are entitled to American citizenship by virtue of their birth within the geographical limits of the United States. That such citizenship is currently bestowed is a matter of administrative inertia rather than statute or legal ruling.

    The point is that neither law nor legal precedent affirm birth-right citizenship to the children of illegal aliens, and that since there is confusion, Congress should pass legislation clarifying this.

    That Congress presently has Constitutional power to legislate upon this topic is clear. That means Congress can just as easily legislate that offspring of illegals get birthright citizenship as they can legislate they be denied it.

    Your bewildering and incongruous remarks of “Religious Right,” “American fetuses,” and “Mexican babies” do nothing to advance civil dialog, but rather affirm that other than referencing a Supreme Court case out of place to the discussion at hand on illegal aliens (Wong’s parents were legal aliens), you don’t have a rational argument to make.

  3. Michael, no that case had nothing to do with illegal aliens, but neither were illegal immigrant aliens the reason for the amendment. I don’t think original intent has much bearing here, and if it does, the instruction is unclear, because the intentions varied.

    No I had not read Ed Erler’s testimony, so I apologize for writing that you omitted mention of United States v. Wong Kim Ark 169 U.S. 649. That was very unfair to you.

    I don’t know why my “bewildering and incongruous remarks” on the Religious Right, American fetuses, and Mexican babies should be unclear. Much though not all of the Religious Right, with whom I agree on some issues, seems to care more about fetuses in the womb than babies out of it, and to care little for immigrant children. And it uncharitably dumbs itself down when it presumes the worst about its political opponents, as you do when you write that they “have a poor understanding of, if not disdain for, American principles and the Constitution,” and wish to create a class of dependent and exploitable voters for the sake of political power.

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