Birthright Citizenship & Executive Orders

President Trump has thrown the political world into a tizzy. In itself, that’s nothing new; he seems to delight in doing so rather regularly. The latest instance is his suggestion that he can end birthright citizenship by issuing an executive order.

I’ll come back to that assertion shortly, but first, let’s look at the issue itself.

The idea that anyone having a child born in the United States automatically makes that child an American citizen has been judged constitutional by our federal courts. The controversy now centers on illegals giving birth. Are those children American citizens if their parents entered the country in opposition to the country’s laws?

All of this stems from the 14th Amendment to the Constitution. How about some historical context here?

The 13th, 14th, and 15th amendments were all added to the Constitution at the conclusion of the Civil War, and all were concerned with slavery and the condition of former slaves. The 13th abolished slavery; the 15th gave former slaves the right to vote. The 13th never caused controversy after the fact; the 15th suffered from attempts to limit that right to vote, but those attempts were eventually banned.

It’s the 14th’s statement about citizenship that is the focus of our current debate. The actual language of the amendment is this:

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.

The first thing to consider is that it was written in the context of ensuring that former slaves were not excluded from citizenship. It was the antidote to the infamous decision in the Dred Scott case in 1857, a decision that upended previous American experience by saying that no black person is or ever was a citizen of the United States. That was at odds with the many free blacks who always considered themselves citizens and had even voted in elections.

That was the main reason for the 14th Amendment: to correct that false belief promulgated by the Dred Scott decision. That is the historical context.

Another part of the historical context is to consider the words uttered on the Senate floor by the author of the amendment, Sen. Jacob Howard, who, in 1866, clarified what was intended by the citizenship clause. Howard stated,

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.

According to Howard, citizenship does not apply to foreigners/aliens and those who are representatives of other countries residing in America as ambassadors, etc. In my reading of the statement, I see a distinction between that particular class of foreign representatives and the general connotation of foreigners and aliens. Wouldn’t an illegal alien fit into that latter category?

I realize there can be differing interpretations. That’s why I wouldn’t mind having this debate be open and free, and even submitted to the courts for further clarification.

Now, on to the president’s assertion that he can do his own personal clarification on the issue.

He cannot.

No executive order from any president can undo a constitutional amendment and/or the courts’ decisions based on that amendment. If Trump were to try to undo this precedent merely by the wave of the magic wand of Executive Order, he would not accomplish his purpose—it would immediately be challenged and go directly to the courts.

His goal in making this pronouncement appears to be purely political, an attempt to rally the base as the midterm elections draw near. While that may be understandable politically, it is nonsense constitutionally.

Here’s where I must challenge my conservative colleagues: if you decried how Obama misused executive orders (and I was one of the decriers), you must be consistent and apply that reasoning to Trump’s proposed use of this particular executive order.

If you excuse what Trump proposes as legitimate, you have tossed away your integrity and have decided that constitutional principle no longer matters as long as a president you support resides at 1600 Pennsylvania Avenue.

On the substance of this birthright issue, I agree that the original intent of the 14th Amendment has been skewed. However, the old cliché remains true: two wrongs do not create a right.

I’m actually glad that the nation might be led into a debate on whether children born to illegals have the privilege of citizenship, but that debate needs to go forward in the constitutionally prescribed manner, not by a phony application of a presidential executive order.

The Cruz-Trump Debate Showdown

The races for the presidential nomination are tightening in both parties. Bernie Sanders is doing surprisingly well against Hillary Clinton. I like what one commentator said about that: “To see her struggling to overcome the challenge from a glowering grouchy grandfather socialist like Bernie Sanders tells us a lot about how far left the Democratic base has drifted.”

On the Republican side, Ted Cruz is now pushing Donald Trump in a way Trump didn’t anticipate; he doesn’t like being behind in a poll, as he now seems to be in Iowa:

Biggest Problem

Trump has spent a lot of time trying to convince Republican voters that everyone else is a “loser,” and that he is the only one who can lift America out of its doldrums. The “loser” meme is getting kind of old:

Losers

So when it looks like he might be the loser, he comes up with a new strategy: claim that Cruz might be ineligible to run because he was born in Canada. Never mind that Cruz’s mom was always an American citizen; ignore that the distinction always has been between someone born to an American citizen and someone who has to go through the naturalization process (which Cruz didn’t have to do); suggest that this could be a huge problem if he becomes the nominee; call for him to have a court decide this.

We have a granddaughter who was born in New Zealand. Her mother—our daughter—is a natural-born American citizen; her father is a naturalized citizen; our granddaughter is considered a natural-born American citizen even though she has never spent one second of her life in the United States. Ted Cruz, except for that brief, transitory period when his father took a job in Canada, has lived in the U.S. all of his life.

There should be no controversy. Trump even acknowledged in the debate last week that he decided to raise the issue because Cruz was coming up in the polls. How crass can you get?

Cruz tore Trump’s argument to shreds in that debate. It was a joy to watch.

Later, Trump got his revenge when Cruz critiqued what he called “New York values.” Now, anyone with even half a brain knew what Cruz meant: that New York in general, and the City in particular, are havens for leftist ideology. When is the last time New York went for a Republican in a presidential race? (Hint: his initials are RR.)

Cruz was quite clear that was what he was talking about. So what did Trump do? He shifted the focus from that leftist ideology that has dominated the state and talked about the way New Yorkers dug out of the rubble of 9/11 and showed great courage in the process.

No one disputes that. It was a clever political ploy, but a ploy nonetheless. It had nothing to do with what Cruz was talking about; rather, it removed the entire context of Cruz’s comments and concentrated on something that had no relation to what he was saying.

In retrospect, Cruz probably should have known Trump might do that. He also probably shouldn’t have singled out New York but the elitist, leftist ideology itself. As a result, Trump had another “victory” in the debate, no matter how deceptive.

What was truly ironic is that he accused Cruz of being insulting, as if the Trump campaign hasn’t revolved around a steady stream of insults for which he never is called to account.

Once you get past the anger Trump has been able to take advantage of, and listen to what he actually says, you discover there is very little “there” there. What we get instead is a healthy helping of hubris, grandiose promises, scanty knowledge of the issues, and a character—based on his previous political/policy views and personal life—that cannot be trusted:

Trump at Debate

Called on by Democrats to apologize for his remarks, here’s what Cruz said in response:

Ted Cruz 2I apologize to the millions of New Yorkers who have been let down by liberal politicians in that state.

I apologize to the hard working men and women of the state of New York who have been denied jobs because Governor Cuomo won’t allow fracking. Even though there had been many high paying jobs just south in Pennsylvania, New Yorkers are denied the ability to provide for their families.

I apologize to all the pro-life and pro-marriage and pro-second amendment New Yorkers who were told by Governor Cuomo that they have no place in New York because that’s not who New Yorkers are.

I apologize to all the small businesses who have been driven out of New York city by crushing taxes and regulations.

I apologize to the millions of unborn children, many African-American and Hispanic, whose lives have been taken by politicians who relentlessly promote abortion on demand with no limitations.

I apologize to all of the African-American children who Mayor de Blasio tried to throw out of their charter schools that were providing a lifeline to the American Dream.

I apologize to the people of New York who are offended when the New York Daily News lambastes anyone who prays for victims of violence.

I apologize to the people of faith who are ridiculed and insulted by the New York media.

And I apologize to all the cops and the firefighters and 9/11 heroes who had no choice but to stand and turn their backs on Mayor de Blasio, because Mayor de Blasio over and over again stands with the looters and criminals rather than the brave men and women of the law.

It was an eloquent “apology,” and one that I wish more Republicans had the courage to issue.

The Citizenship Question

Sen. Lindsey Graham [of all people] has come forth to address the issue of the children of illegal immigrants becoming citizens. The way the law is currently understood—erroneously, I might add—any child born within the United States, to any immigrant, legal or illegal, is automatically a citizen of the United States. Some immigrants do come into the country as the due date approaches, give birth here, and then use the status of their child, a so-called “Anchor Baby,” to remain here.

We are told this is the result of the passage of the Fourteenth Amendment to the Constitution. All amendments must be viewed in context and interpreted according to original intent. The Fourteenth Amendment was one of the post-Civil War amendments dealing with the ex-slaves. All that was intended by it was to ensure that no Southern state would take rights away from these ex-slaves. That’s why the wording was as follows:

All persons born … in the United States, and subject to the jurisdiction thereof, are citizens.

How do we know the original intent was to apply to ex-slaves only? We have the word of the very man who wrote this particular clause. He was Michigan Senator Jacob Howard. As author Thomas West writes,

It appears, however, that the citizenship clause of the Fourteenth Amendment has long been misunderstood. Edward J. Erler points out that the author of the clause, Senator Jacob Howard, emphatically stated that those “subject to the jurisdiction” of the United States “will not, of course, include persons born in the United States who are foreigners” or “aliens.” In other words, the Fourteenth Amendment was never intended to grant automatic citizenship to American-born children of foreigners, and the Supreme Court erred in 1898 when it ruled otherwise. (The Court never ruled that American-born children of illegal aliens are citizens, although that too is current federal policy.)

I realize that original intent doesn’t mean a whole lot to many judges anymore, but if we are to be faithful to the amendment’s original purpose, we must cease the practice of making citizens of anyone born on American soil. No new amendment is necessary. The one we have will do nicely.

I do highly recommend West’s book. It’s called Vindicating the Founders, and it deals not only with what the Founding Fathers thought about immigration, but also race, women, property, voting, and welfare. I use it in my American Revolution course, and it proves to be quite enlightening for most students.

Meanwhile, back to the topic: so when you hear politicians claiming that children of immigrants, legal or illegal, are automatically citizens, realize they don’t understand the Constitution they are supposedly upholding. And when you hear that something else must be done to reverse this policy—well, that might be necessary, given the times, but it shouldn’t have to be. The original intent of the amendment is quite clear historically.