14th Amend­ment pro­hibits birthright ci­ti­zen­ship

Westside Eagle-Observer - - OPINION - By Harold Pease, Ph.D.

Most con­sti­tu­tional ex­perts know that there ex­ists no birthright ci­ti­zen­ship in the 14th Amend­ment to the U.S. Con­sti­tu­tion. Lib­er­tyUn­derFire and oth­ers have made this case for many years. Un­for­tu­nately, House Speaker Paul Ryan rep­re­sents the class of politi­cians least in­formed on this sub­ject when he said, “As a con­ser­va­tive, I’m a believer in fol­low­ing the plain text of the Con­sti­tu­tion and I think, in this case, the 14th Amend­ment is pretty clear.” If he were a con­sti­tu­tion­al­ist, he would know bet­ter.

Cur­rently, the Demo­cratic Party lead­er­ship does not care whether it is, or is not, con­sti­tu­tional be­cause it views all il­le­gal im­mi­grants as fu­ture Democrats. The ig­no­rance of the es­tab­lish­ment press, too, is over­whelm­ing. So, we make the case once again that the Con­sti­tu­tion does not sup­port, but in­stead de­nies, birthright ci­ti­zen­ship to those in the United Sates il­le­gally.

Most have sym­pa­thy for those who were in­fants or were born here — when their par­ents il­le­gally crossed the bor­der — and have lived here all their lives and know no other coun­try. The 14th Amend­ment seems to val­i­date such sym­pa­thy if we ig­nore six words of this phrase: “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.” But con­sider the phrase “and sub­ject to the ju­ris­dic­tion thereof.” The pur­pose of the clause was to guar­an­tee ci­ti­zen­ship to freed slaves (al­ready res­i­dents) and their de­scen­dants af­ter the Civil War. It had noth­ing to do with im­mi­gra­tion. Re­cip­i­ents were al­ready sub­ject to the ju­ris­dic­tion of the United States.

The con­cept of “an­chor ba­bies” refers to those whose par­ents are il­le­gal im­mi­grants into the United States and while here have a baby. That baby, (ex­clud­ing the six words) then in­her­its full ci­ti­zen­ship and even the right later, as an adult, to spon­sor his or her own il­le­gal par­ents in their quest for ci­ti­zen­ship. The de­bate for or against the prac­tice of al­low­ing ci­ti­zen­ship for ba­bies of il­le­gals born in the U.S. rages on with vir­tu­ally no one go­ing to the source of the al­leged au­thor­ity — the crafters of the 14th Amend­ment of the Con­sti­tu­tion.

Sen­a­tor Ja­cob Mer­ritt Howard, the ar­chi­tect of the 14th Amend­ment, ac­tu­ally struc­tured the Amend­ment, (one of two defin­ing the le­gal sta­tus of freed slaves af­ter the Civil War, the other be­ing the 13th which gave them free­dom), to pre­vent that very in­ter­pre­ta­tion. He said: “This amend­ment which I have of­fered is sim­ply declara­tory of what I re­gard as the law of the land al­ready, that ev­ery per­son born within the

lim­its of the United States, and [al­ready] 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 min­is­ter ac­cred­ited to the Gov­ern­ment of the United States, but will in­clude ev­ery other class of per­sons.”

It was he who in­sisted that the qual­i­fy­ing phrase “sub­ject to the ju­ris­dic­tion thereof” be in­serted. Those cross­ing our bor­ders il­le­gally are clearly for­eign­ers not res­i­dents, and not sub­ject to the ju­ris­dic­tion of the United States, and thus are specif­i­cally ex­empt from ci­ti­zen­ship. No­tice also the ex­clu­sion of ba­bies born of am­bas­sadors while here. The record of the Se­nate de­lib­er­a­tions on the 14th amend­ment shows no other in­ter­pre­ta­tion.

There is no such thing as au­to­matic ci­ti­zen­ship from this amend­ment without se­ri­ous dis­tor­tion of it. In fact, Ly­man Trumbull, co-author of the 13th Amend­ment out­law­ing slav­ery, ad­dress­ing the def­i­ni­tion of the phrase “sub­ject to the ju­ris­dic­tion thereof,” asked, “What do we mean by com­plete ju­ris­dic­tion thereof? Not ow­ing al­le­giance to any­body else. That is what it means.”

Those cross­ing our bor­ders il­le­gally have ju­ris­dic­tion or al­le­giance else­where and thus can­not have birthright ci­ti­zen­ship. How can a child of such a parent­age have what his par­ents clearly do not have?

How many are born il­le­gally in the United States per year? Sta­tis­tics are dif­fi­cult to val­i­date, but the Pew His­panic Cen­ter study es­ti­mated 340,000 in 2008 alone and re­cent re­search has dou­bled il­le­gal en­try from 11 to 22 mil­lion, so births from il­le­gals are also pre­sumed dou­ble. The Cen­ter for Im­mi­gra­tion Stud­ies es­ti­mated the an­nual cost of pro­vid­ing health­care, ed­u­ca­tion, and food stamps for many, and all other in­ci­den­tal costs at $2.4 bil­lion — and that was based upon the pre­sumed 11 mil­lion.

Ci­ti­zen­ship was de­nied Na­tive Amer­i­cans un­til 1924 be­cause they owed al­le­giance to their Sioux, Apache, Black­foot or other In­dian na­tions and thus were not yet “sub­ject to the ju­ris­dic­tion thereof” of the na­tion within which they lived. Cer­tainly, one must cease to be at war or con­flict with the con­quer­ing coun­try. So just be­ing on U.S. soil did not make them ci­ti­zens au­to­mat­i­cally un­til the “ju­ris­dic­tion thereof” part of the Amend­ment was sat­is­fied.

Many of our Mex­i­can friends send por­tions of their pay­checks home to Mex­ico and plan to re­turn to their na­tive land upon re­tire­ment with pen­sions and/or So­cial Se­cu­rity sent to their “first” coun­try from the coun­try from which they ex­tracted their wealth — the United States. Some vote in Mex­i­can elec­tions from here. It is in­deed hard to ar­gue that they are not sub­ject to the ju­ris­dic­tion of a land other than the United States — and most will ad­mit it.

Our gov­ern­ment, es­tab­lished and em­pow­ered by the Con­sti­tu­tion, can­not al­low for birthright ci­ti­zen­ship without vi­o­lat­ing the 14th Amend­ment.

Harold W. Pease, Ph.D., is a syn­di­cated colum­nist and an ex­pert on the United States Con­sti­tu­tion. He has ded­i­cated his ca­reer to study­ing the writ­ings of the Found­ing Fa­thers and ap­ply­ing that knowl­edge to cur­rent events. He taught his­tory and po­lit­i­cal sci­ence from this per­spec­tive for more than 30 years at Taft Col­lege. To read more of his weekly ar­ti­cles, visit www.Lib­er­tyUn­derFire.org.

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