Recent comments by President Trump that he would end birthright citizenship brought a firestorm of comments on many websites and news outlets. Many are in favor of the idea, and just as many are opposed. Even those in favor of ending birthright citizenship wonder if POTUS has the power to do it by himself.
The answer is, Maybe.
The constitution clearly puts the power of determining who can become a citizen in the hands of congress in Article I, Section 8, Paragraph 4: "Congress shall have the power...to establish an uniform Rule of Naturalization...", however, congress has never exercised that power in the case of birthright citizenship. At the time of our founding, British common law held sway, and in Britain, "Jus soli", or birthright citizenship was the law of the land. However, "Jus sanguinis", or "right of blood" was becoming popular in continental Europe. There it was held that only persons born of citizens were citizens themselves. Even now, there is no European or Asian country that has unrestricted birthright citizenship. It is a product almost solely of the Americas.
A widely popular book titled, "The Law of Nations", written in 1758 by Emerich de Vattel, was a go-to source for the founding fathers. It already had a huge influence in continental Europe. Many founders had a copy, and on receiving three copies in the original French, Benjamin Franklin stated, "It came to us in good season, when the circumstances of a rising State make it necessary to frequently consult the Law of Nations." He also remarked of the book, "[it] has been continually in the hands of the members of our Congress now sitting."
It was so influential that its title appears in our constitution just 6 paragraphs down from the naturalization clause where congress is empowered to "define and punish ... Offences against the Law of Nations;" It is clear that this book was on the founders' minds as they considered the grand experiment that is our United States. In The Law of Nations, Vattel writes in Book I, Chapter 19, Paragraph 212, "... in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be the place of his birth, and not his country." This is a clear indicator that a child has the citizenship of his parents, not of his place of birth. As this book so heavily influenced our founding, it is obvious that this pervaded the thoughts of many of our founders.
So what about the 14th Amendment? Doesn't it have a clause that guarantees citizenship to anyone born here? The answer according to many is, "Yes", but looking at the original intent of the amendment, and six little words that most people ignore or don't understand, you will see that it is plainly, "No". The trick is in the wording and why it is there.
In the middle of the 1800's the United States saw its most horrific war. Southern states, where slavery was allowed warred against the northern states, where it was banned. As new states were added, a condition of statehood was that the new states be free. Southerners saw their power and influence waning in congress as more free-state senators and representatives were added to congress. Their way of life was in jeopardy. Not that slavery isn't wrong - it is a horrible injustice, and a stain on the south to this day. The South attempted to secede from the Untied States, and the U.S. fought back. Three years into the war, President Lincoln issued the Emancipation Proclamation, declaring slaves in the rebelling states to be free. That the emancipation proclamation exempted certain states and allowed continued slavery isn't widely known, but no matter - The north won, and in 1789 the 13th amendment to the constitution banned slavery in all of the United States and areas subject to its jurisdiction. But what happened afterward?
What rights have these newly-freed slaves? The 14th Amendment was a "reconstruction amendment" designed to clean up issues related to the U.S. debt, representation in congress, equal protection, and of course - the citizenship of the former slaves. In its first section it 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." This was to ensure that former slaves were entitled to the rights of other citizens.
Note those six little words, "and subject to the jurisdiction thereof." What are they doing there, and what do they mean?
When trying to understand the legislative intent of a constitutional amendment, it is wise to review the actual words of those who wrote it and voted upon it. You can find the Senate's 1866 debate in the Congressional Globe, pages 2890-2897.
The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is "simply declaratory of what I regard as the law of the land already." Sen. Howard said that "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." The phrase was added when it was realized that as originally written, the the 14th amendment would have granted birthright citizenship. This was pointed out in the debates and quite thoroughly discussed, so there should be no doubt what this phrase is intended to mean. The clause does not apply to children of foreigners.
Sen. Lyman Trumbull of Illinois, one of the principle authors of the 14th Amendment, said that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, meaning "not owing allegiance to anybody else."
Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction
requirement: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Johnson's reading of the jurisdiction requirement also lines up quite well with our naturalization policy. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.
He also said - "If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”
In one of the few related Supreme Court cases, Elk v. Wilkins, 112 U.S. 94 (1884) SCOTUS held that children born to Indian parents were not born "subject to" U.S. jurisdiction (Indian tribes were considered quasi-foreign nationals), so among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent." Certainly someone born of parents from an actual foreign nation nation would have even less ground to stand on. It was not until 1924 that Indians gained the right to automatically claim U.S. citizenship. In only one case did SCOTUS rule in favor of birthright citizenship, and that was to the child of a legal immigrant.
So why do we have birthright citizenship now?
The answer is that it is largely due to apathy. Over the years, and especially in the 1960's, the bureaucracy of the executive branch of government began to implement birthright citizenship. When asked about a justification, the 14th amendment was cited without any real knowledge or understanding of the wording and why it is there. They just see "anyone born..." and leave it at that. No one complained, and so it became the status quo. Now that it is more of a political issue, we can look at intent, and who has authority to do anything about it.
As was mentioned in the initial paragraphs, Congress is given authority to regulate naturalization; but as we have seen, it has been the executive branch that has been allowing persons born of illegal immigrants to claim citizenship. Since Congress has never availed themselves of the opportunity to clarify the issue through legislation, it is clearly up to the bureaucracy to make the changes. Who is head of the bureaucracy? You guessed it - the President of the United States. At this time, President Donald Trump has all the authority he needs. He only needs to make the argument that the 14th amendment does not grant jus soli based on intent, and issue an executive order.
If this happens, I can virtually guarantee there will be a court case filed before the end of the day.
