Constitution Doesn’t Mandate Birthright Citizenship

Article author: 
Ken Klukowski
Article publisher: 
Article date: 
18 August 2015
Article category: 
Our American Future
Article Body: 

...The Constitution’s Fourteenth Amendment does not confer citizenship of the children of foreigners, whether legal or illegal.

Media commentators have gotten this issue dead wrong...

That’s not the law. It has never been the law.

Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional?

No. The Citizenship Clause of the Fourteenth Amendment provides: “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.” Today’s debate turns on the six words, “subject to the jurisdiction thereof.”...

In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws...

The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All 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.”

That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government...

In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment...

So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.

Media confusion on this issue is puzzling...

It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans...

...denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment.


CAIRCO Research

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