It’s My Birthright! Or Maybe It Isn’t

by Derrick G. Jeter

The good folks on Capitol Hill and the political talking heads in D.C. and New York need to take a collective breath. They’re on the verge of hyperventilating and passing out. It seems there is always something for them to get apoplectic about. It’s not good for their blood pressure, and frankly it’s not good for mine. The latest issue steaming their pot is the debate about whether certain GOP lawmakers want to “change” the Constitution—specifically, the Citizenship Clause of Fourteenth Amendment.
For many this is just the latest in a string of abuses heaped on poor illegals, starting with the Arizona bill passed earlier this year. Now federal lawmaker are seeking to “change” the Constitution so that American born children of illegal immigrants will lose the rights of citizenship. Outrageous! How un-American and hate-filled could these congressmen be? Doesn’t the Fourteenth Amendment grant the rights of citizenship to all children born in America? Linda Chavez, President George W. Bush’s Secretary of Labor, certainly thinks so. In a recent article in the Wall Street Journal, she contends that since the abolition of slavery the U.S. has never denied citizenship to any group of children born within its boarders.
Well, it would be outrageous and un-American if Congress tried to “change” the Constitution in an un-Constitutional manner. But it’s not. And Ms. Chavez’s impassioned argument and verbal dexterity, claiming denial to “groups,” notwithstanding, she’s just simply wrong. What Senators John McCain, Lindsey Graham, and Jon Kyl, and House minority leader John Boehner (and others) are attempting to do is have a debate to clarify the language of the Fourteenth Amendment—hardly subversive or hateful, and, in fact, could restore a historical precedent. And clarification is needed here. Section 1 of the Fourteenth Amendment in the United States Constitution reads:
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.
What has popularly been understood comes from placing the emphasis on the first clause: “All persons born or naturalized in the United States . . . are citizens of the United States.” But it is the second clause, “subject to the jurisdiction thereof,” that modifies the first clause and is the language in question. What does “subject to the jurisdiction thereof” mean? This is the question John Eastman, the Dean of Law at Chapman University School of Law, answers in his excellent Heritage Foundation article, “From Feudalism to Consent: Rethinking Birthright Citizenship.”  Eastman argues that “However strong [the automatic birthright citizenship] interpretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate surrounding its adoption), but also with the political theory of the American Founding.” [1] Eastman continues:
The widely held, though erroneous, view today is that any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpretation, necessarily “subject to the jurisdiction” of the United States. Yet it is well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

The “subject to jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil.
And it does, according to those who drafted the amendment in the late 1860s. The 1866 Civil Rights Acts, from which the language of the Fourteenth Amendment was derived, defines what “subject to the jurisdiction” means: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States” (emphasis mine). In other words, a child born to anyone visiting the United States, an illegal immigrant in the United States, or potentially a legal immigrant in the United States is not automatically a citizen of the United States by virtue of the fact that that child’s parents are subject to a foreign power.
To further refine the meaning of “subject to,” Senator Lyman Trumbull, a key drafter of the Fourteenth Amendment, affirmed: “‘subject to the jurisdiction’ of the United States [means] subject to its ‘complete’ jurisdiction, ‘[n]ot owning allegiance to anybody else.’” This understanding was upheld in the Supreme Court in 1872, in The Slaughter-House Case. The majority wrote that the “‘main purpose’ of the clause ‘was to establish the citizenship of the negro’ and that ‘[t]he phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States’” (emphasis Eastman). Even the minority agreed on this point: “the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.”
This was how the Fourteenth Amendment was understood from it ratification on July 9, 1868—after the abolition of slavery—until the Supreme Court’s ruling in United States v. Wong Kim Ark in 1898. In this case, Justice Horace Gray, writing for the majority, failed to see the distinction between what Eastman calls “partial, territorial jurisdiction,” which everyone within the United States is subject to, and “complete political jurisdiction.” For example, if an Englishman were in the U.S. on vacation, he is subject to the rules of U.S. roads—he must drive on the right hand side of the street. That is “partial, territorial jurisdiction.” But let’s suppose our Englishman is traveling with his wife and she is pregnant. As the language was understood before the Court’s ruling in Wong Kim Ark, if she were to give birth, the child would not receive United States citizenship because the father and mother, while subject to United States “partial, territorial jurisdiction,” are still subject to English “complete political jurisdiction.” That is, they owe their allegiance, their fidelity, their pledge to Great Britain, not the United States. Since the Wong Kim Ark ruling, however, that understanding has changed, and is how we understand the Fourteenth Amendment today. Gray, writing for the Court, said, “‘a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and residence in the United States’” was, merely by birth in the United States, now a citizen of the United States (emphasis mine).
As Eastman observes from Gray’s decision:
What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children merely be giving birth on American soil, whether or not their arrival on America’s shores were legal or illegal, temporary or permanent. . . .

Children of parents residing only temporarily in the United States on a student or work visa would also become U.S. citizens. Children of parents who had overstayed their temporary visas would likewise become U.S. citizens, even though born of parents who were now in the United States illegally. And, perhaps most troubling . . . even children of parents who never were in the United States legally would become citizens as the direct result of the illegal action by their parents. This would be true even if the parents were nationals of a regime at war with the United States and even if the parents were here to commit acts of sabotage against the United States, at least as long as the sabotage did not actually involve occupying a portion of the territory of the United States. The notion that the framers of the Fourteenth Amendment, when seeking to guarantee the right of citizenship to former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in its territory illegally is simply too absurd to be a credible interpretation of the Citizenship Clause.
Eastman goes on to argue that such an interpretation is also absurd to the intent of the framers of our constitutional-republic, the Founding Fathers.
Our Fathers made clear that legitimate government is based on “the consent of the governed.” [2] This must also apply, not just in the formation, but in the continuation of legitimate government. The Massachusetts Bill of Rights (1780) makes this clear: “The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.” In other words, consent must be reciprocal, both by the individual who consents to governmental authority and by the legitimate community as a whole who accepts that individual. As Edward Erlier states, “If all persons born within the geographical limits of the United States are to be counted citizens—even those whose parents are in the United States illegally [who do not consent to the rule of law]—then this would be tantamount to the conferral of citizenship without the consent of “‘the whole people.’”
What Gray has done, and we need to correct, is to throw the Fourteenth Amendment into a feudalistic system that says, in the words of William Blackstone, that “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.” This is contradictory to our Founder’s intent in the Declaration of Independence of consent by the governed and the framer’s intent in the Fourteenth Amendment of subject to jurisdiction. Eastman concludes:
It is time for the courts, and for the political branches as well, to revisit Justice Gray’s erroneous interpretation of the Citizenship Clause, restoring to the constitutional mandate what its drafters actually intended: that only a complete jurisdiction, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented.
So, what are the GOP lawmakers trying to do? Exactly what Dr. Eastman is advocating. This makes the debate, not about race or bigotry or “changing” the Constitution, but about national sovereignty and the rule of law, which, when it comes to granting U.S. citizenship, is Congress’s responsibility and mandate. [3]
Now, perhaps we can all breathe a little easier, get serious about illegal immigration, and have an intelligent and civil conversation like adults and not children throwing a temper tantrum.
[1] John C. Eastman, “From Feudalism to Consent: Rethinking Birthright Citizenship,” Legal Memorandum, no. 18, March 30, 2006 (Washington, D.C.: The Heritage Foundation), www.heritage.org/research/legalissues/lm18.cfm, accessed August 10, 2010. All quotations are from this source unless otherwise noted.
[2] The Declaration of Independence, paragraph. 2.
[3] See the United States Constitution, Art. I, § 8, cl. 4 (“The Congress shall have power . . .To establish a uniform Rule of Naturalization”).
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