Trump is right about birthright Citizenship. In it's current iteration it is unconstitutional. I am neither a lawyer nor a constitution scholar, but I am a student of history and the Constitution. Birthright citizenship is a modern invention of the administrative state. Ever since the election of Woodrow Wilson our country has been using the courts to get around the Constitution rather than enforcing it. The Democratic party has carried out its agenda by telling voters they believed in the Constitution then forcing anti-Constitutional provisions through the court. This is why there is so much hostility to Trump's judicial nominee's. He has their number.
Over and over again this week as Trump talked about the hundreds of thousands, millions of people who have used the 14th Amendment to gain citizenship for their children just by birthing them on U.S. soil, as something that was illegal his opponents have quoted a part of the 14th Amendment:"All person's Born or naturalized in the United States ... are citizens of the United States and of the State where they reside." Those word are taken from the Constitution but they are seldom quoted the way I have. You all most never see the elipsis between the word "States" and "are." Those three little dots tell us that the quote is "out of context." There are words that are left out.
Well if you believe the Constitution in "a living document" that it's meaning changes according to cultural instinct, then you can ignore any part that you deem irrelevant, or that just doesn't meet your agenda, or you add words.That's the kind of judical activism the liberal social justice crowd has used to "fundamentally transform" our society regardless of the will of the people.
So what are those missing words that have in this century been ignored in our immigration system: "and subject to the jurisdiction thereof." What the Constitution says is, that citizenship is about more than place of birth. The authors of the Fourteenth Amendment had just come out of a bloody civil war. They understood that citizenship was about more than an intersection of DNA and geography. It is more than about place or race. Citizenship is about relationship to a people and a culture, and an infrastructure.
Even in today's liberal culture birthright citizenship is not universal in the United States. The Children born to foreign diplomats on US soil are not issued U.S birth certificates; neither are children of foreign military personnel serving in the U.S. Is that because we are "xenophobic" nationalist? No it is because we quietly in some cases do actually follow the Constitution, when it is convenient. Yes, for the 14th Amendment, it was not just about where you were born; it was about loyalty. Confederate officers who denounced their citizenship were not automatically restored to citizenship because they lost the war. Some were never restored to citizenship and some were required to swear loyalty to the United States. This also protects loyal citizens who are born outside the United States. A child born to U.S. Citizens living abroad can be issued a U.S. birth certificate. The child of military personnel who are born overseas, but whose parents are "residents" of the U.S. are given a U.S. birth certificate. It's not a matter of where your wer born but under whose flag you reside. It is this "jurisdiction clause" that Trump is going to use to bring citizenship in line with Constitution.
The history on this is clear: The Amendment was adopted following the Civil War in order to insure that freed slaves, living here were assured of citizenship after the Southern states were repatriated. The language of the jurisdiction clause was added specifically to ensure that citizenship was granted to any one who reside here and who was subject to our laws. The actions of Congress since then have made that clear. The Citizenship act of 1855 says "the rights of citizenship SHALL NOT DESCEND [emphasis mine] to persons who fathers never resided in the United States."
Some quote the 1898 decision of United States v. Wong Kim ark as a precedent for allowing illegal aliens born on U.S. soil citizenship. It does not Kim, a Chinese American was born in San Fransisco to in 1870 to Chinese parents, who while here legally, but were prohibited from naturalization under the Chinese Exclusion Act. The issue in Kim was not jurisdiction it was the fact that since the Chinese Exclusion Act prohibited Chinese from being naturalized, but his parents had been here legally for over twenty years was he a citizen. Kim had left the country with a U.S. Passport to do business in China and when he returned to the country was denied entry on the basis that since his parents were non-citizens and he had left the country his passport was no longer valid, since he was not a citizen. The issue was his parent's status and the fact that he had been residing overseas for a period of time. His place of birth was not at issue.
It is important to realize that at the time of the passage of 14th Amendment native Americans born on U.S. soil were considered non-citizensp since they lived in separate sovereign tribes many of which were hostile to U.S.lay. In Worchester v. Georgia the Supreme Court ruled that native Americans who resided under the authority of their tribes were NOT citizens of the United States. The jurisdiction clause of the 14th amendment was written to reflect this principle. While Congress granted native Americans citizenship under the Indian Citizenship Act of 1924 it did not re-interpret the language of either Worchester or the 14th Amendment. Rather it recognized that since Indian lands had been fully conquered, and thousands of Native Americans had been drafted and served in World War 1 that 20th century native Americans were living under the sovereign authority of the U.S. and they and their were citizens by birth. In the period where Indians still acted as independent nations those born on Indian lands or to Native American parents were NOT citizens.
While from a 21st Century perspective we might consider those principles to be nativistic or xenophobic it does inform us of the intent of the framers of the 14th Amendment and the meaning of birthright citizenship. The Amendment was never intended to give a pregnant foreign national the right to have her baby in the U.S. so that in the future the child could claim the benefits of U.S. citizenship. Nor was it intended to grant the privilege of citizenship to children whose parents had entered the country illegally with no connection to our authority. Children who dream of coming to this country are welcome to immigrate illegally. Dreamers born to illegal immigrant parents who no nothing other than the United States and who are loyal to it, can apply for naturalization, and have a strong case for granting it. But birthright citizenship was actually meant to protect parents not children. To ensure U.S citizen parents or residents loyal to the U.S. could claim citizens for their children, regardless of their race or ancestry. The authors of the 14th Amendment did not intend to grant citizenship to children of American Indians at the time who were not viewed as subject to U.S. law nor were they taxed. The 14th Amendment specifically was written to prevent its application to any child born born to people who were not subject to U.S las.
The modern concept of birthright citizenship has been applied by administrative rule rather than by legislation. At no time has the Constitution, the Congress or the courts ruled that citizenship had to be granted children because of the location of their birth alone. It has ruled that children of American Citizens or residents are granted citizenship regardless of their race or location. Constitutional scholar and former Justice Department Chief of Staff Mark Levin has explained this issue many times. So if President Trump issues and Executive order prohibiting citizenship to the children of parents born legally he will be within his right. No doubt it will be challenged, and no doubt it will be upheld, because Trump is right about birthright citizenship.
