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 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.