Birthright Citizenship and the 14th Amendment

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” – 14th Amendment of the U.S. Constitution

In 1866 there is no doubt that the 14th Amendment of the U.S. Constitution was never intended to grant citizenship to anyone other than recently freed slaves. However, that is not where the discussion begins or ends. The immigration policies of the United States have been more about dealing with a particular situation in a brief moment in time, and not about a ‘future’ United States of America This makes us no different than any other nation, but unlike other countries, we have allowed emotion and not rational thought to guide our national immigration policy.

Emotion conveys a passion for a topic; however emotion is a poor substitute for coherent conversation. Emotion inevitably leads to rash pronouncements, and makes for poor policy-making decisions. The 14th Amendment, above all other Constitutional Amendments, has been one of the most misused Amendments, abused by people guided by emotion or duplicity, and not by rational engagement. The twisted logic used to pervert the original intent of the 14th Amendment completely disregarded history and abandoned the rule of law.  The principles of the 14th Amendment were noble yet simple in their original intent, only to be distorted in the future.

The 14th Amendment must always be viewed from the vantage point of the times in which it was written, and we must acknowledge its historical true intent. The original intent of the 14th Amendment was clear: to ensure equality under the laws of the United States of America for recently freed slaves throughout the U.S. Territories. This affirmed that recently freed slaves were “subject(s) to the jurisdiction thereof” as slaves, and as such should be afforded all the rights and liberties enjoyed by other citizens of the United States.

The fact is that the 14th Amendment has nothing to do with immigration, and everything to do with two key historical events of a Civil War Era America, the Dred Scott Supreme Court decision and the eventual emancipation of those held in bondage as slaves throughout the acknowledged boundaries of the United States.

In 1857, the tortured logic of then Chief Justice Roger Taney (a former slave-owner), was the prevailing factor which deemed Dred Scott not a citizen of the United States, but that his status as a slave meant that he was subject to the laws of the United States, in essence, the jurisdiction. In 1857, blacks (free or slave) had no standing in U.S. Courts according to the Dred Scott decision. Slaves were the property of their owners, and even when they crossed into non-slave territories, their destiny was tied to the jurisdiction of the prevailing laws of the United States.  The Supreme Court also stated that the Congress, under the Fifth Amendment, lacked the authority to deprive citizens of their property.

This was the environment that existed before the Civil War, but the Supreme Court decision resulted in the belief that Dred Scott was the law of the land, and was still the prevailing decision after the Civil War. Many historians believe that other steps could have been used to rectify the impact of the Dred Scott decision. However, two individuals, Abraham Lincoln and Senator Jacob Howard, chose the route of a Constitutional Amendment.

Lincoln believed the Dred Scott decision was “erroneous,” that could be corrected “only by amendments of the Constitution.” Senator Jacob Howard, the chief architect of the 14th Amendment, made it clear from the floor of the United States Senate that the true intent of the 14th Amendment was:

“Every 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.”

Howard’s sentiments were reaffirmed by his colleague Senator Edward Cowen:

“(A foreigner in the United States) has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word.”

1868 America did not limit immigration when the 14th Amendment was ratified. Thus some would debate that there were, by definition, no illegal immigrants. However, the historical facts regarding the 14th Amendment are clear; birthright citizenship is not afforded to the children born to illegal immigrants. I understand that it is difficult to separate emotion from rational thought. We are talking about fellow human beings. However we are also talking about the rule of law and commonsense.

We have a pathway to citizenship that millions of people have respected, while others have ignored with the help of willing politicians. I am neither racist nor inhumane, and neither are the millions Americans who share the same view. This is not about jobs or prejudice, but the simple rule of law. Those who believe we need comprehensive immigration reform without addressing the true intent of the 14th Amendment, and apply a commonsense, modern approach to the understanding of birthright citizenship are being extremely disingenuous. In an age of jet travel, do we want a policy that grants citizenship to the baby of a tourist born in an airport terminal somewhere in the United States? That is how many people interpret birthright citizenship.

The rest of the world overwhelmingly rejects the concept of birthright citizenship. Since 1981 the following countries have outlawed birthright citizenship: Portugal, UK, Malta, India, France, Ireland, New Zealand, and Australia. The only two developed nations that “permit” birthright citizenship are the USA and Canada (which still maintains conditions). Twenty-eight other developed nations, such as Sweden, Germany, Japan, Norway, do NOT permit birthright citizenship. Twenty-eight other nations permit birthright citizenship, but many of those are the countries people are fleeing. Still, 65 other countries do NOT permit it. Granting of automatic citizenship to children of illegal alien mothers is a recent, inadvertent, and some would say an unforeseen result of the 14th Amendment and the Reconstructionist period in which it was ratified.

Legal immigration should be encouraged, but we must place a value on citizenship. The issue of birthright citizenship is a legal issue that can be corrected by Congress, without the need of a Constitutional Amendment (as mandated by the U.S. Constitution-Article 1 Section 8). There are simple remedies for a situation we have allowed to propagate. We have failed as a nation to adhere to the Constitution by not securing our borders properly and by not establishing commonsense immigration laws. However, this failure is easy to overcome, but it will require integrity, commonsense, and rational thought. All very much lacking in Washington, DC.

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