Birthright Citizenship and the 14th Amendment

The question of birthright citizenship has received a lot of attention lately.  President Trump’s announcement that he was considering an executive order to deny citizenship to the children of illegal aliens sent many Americans searching for either a defense or a refutation of the President’s decision.  Most of the resulting discussions and debates have centered around two documents that have, not surprisingly, been hastily mishandled by parties on both sides of the debate.  Those two documents are the records of the Senate debate over the 14th Amendment as published by the Congressional Globe and the opinion of the Supreme Court in the case United States v. Wong Kim Ark.  In this article, we will examine both of these documents to see whether they support or reprove President Trump’s intentions.

The Text of the Amendment 

The actual section of law being discussed in regards to President Trump’s announcement is Section 1 of the 14th Amendment which reads as follows:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The primary point of contention regarding the application of this Amendment to the children illegal aliens is the phrase “subject to the jurisdiction thereof.”  Those in favor of the President’s intention claim that illegal aliens are not subject to the jurisdiction of America and that, consequently, this phrase exempts illegal aliens from the birthright citizenship provision of this section.  This claim is founded primarily on the view that the phrase “subject to the jurisdiction thereof” was intended to exclude the children of those immigrants who had no intention of becoming citizens.  Those who disagree with President Trump claim that this phrase was solely intended to exclude the children of foreign emissaries.  Thus, our analysis of the two documents just mentioned will focus on providing a clear understanding of the phrase “subject to the jurisdiction thereof.”
 
As we begin our study, however, it is important to recognize that this phrase is not the only time that the term “jurisdiction” is used within Section 1 of the 14th Amendment.  The same term is used at the end of the section where it is declared that no state has the right to “deny to any person within its jurisdiction the equal protection of the laws.”  This repetition of the same term within the same section should indicate that it carries the same meaning in both usages.  Whatever definition we apply to the term “jurisdiction” in the first sentence of this section must also be applied to the term “jurisdiction” in the final sentence of the section.

The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate - Sen. Wade's Proposal
The Debate in the Senate - Sen. Howard's Amendment
The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction
The Debate in the Senate - Sovereignty Over the Soil
U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
U.S. vs. Wong Kim Ark - Rejection of Jus Sanguinis
U.S. vs. Wong Kim Ark - The Slaughterhouse Cases
U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof
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