Birthright Citizenship for Illegals Is Not Required

“One of the first things Rand Paul did upon his entry into the U.S. Senate was to join Sen. David Vitter in proposing a constitutional amendment to end birthright citizenship—one of the foundations of U.S. citizenship law that has been in place since Reconstruction.” – Simon Maloy, Solon 8/25/14

Fact Check: A strong article of faith among those who advocate for illegal aliens is that the Constitution, specifically the 14th Amendment, mandates the current policy of granting automatic (birthright) citizenship to the children of illegal aliens who are born on U.S. soil. Maloy criticizes Paul and Vitter for wanting to change the amendment to end this policy. Actually, all are wrong in maintaining that the amendment requires it, as analysis of its original intent and subsequent court rulings will show.

The citizenship clause of the amendment states, “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 key phrase is “subject to the jurisdiction thereof.” Jurisdiction in this case did not apply to individuals of foreign nations born on American soil.

As an example, said Sen. Jacob Howard, co-author of the citizenship clause, “Indians born within the limits of the United States, and who maintain their tribal relations, are not in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”

Subsequently, the Supreme Court upheld this interpretation of jurisdiction (meaning no loyalty to a foreign nation) in two decisions, the Slaughter-House Cases (1873) and Elk v. Wilkins (1884). In 1898, the Court significantly ignored these precedents in the Wong Kim Ark ruling (1898), which held that the child of Chinese immigrants born in the U.S. was a citizen. Nevertheless, the parents were legal residents with “a permanent domicile and residence in the United States.” Thus, that ruling doesn’t explicitly uphold the current interpretation of birthright citizenship for the children of illegal aliens.

In 1924, Congress passed legislation granting citizenship to tribal American Indians. By doing so, the House and Senate affirmed that they had this authority, and that it was not already granted under the 14th Amendment. Similarly today, Congress could pass legislation ending birthright citizenship. Illegal alien advocates no doubt would challenge it with legal action, but this would give the Supreme Court an opportunity to settle the issue. In such a case, assuming that the Court would rule in keeping with the weight of the law, birthright citizenship for illegal aliens would cease.


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