Do You Need to End Birthright Citizenship to Solve the Problem of Anchor Babies?

14th Amendment

Having a hard time getting attention to this question:

  • Does the 14th Amendment REALLY grant birthright citizenship to children of ILLEGAL immigrants?

You see, being born in the territory of the United States is not the only requirement the 14th Amendment gives for what we call birthright citizenship.

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. [Amendment 14, Section 1]

‘…subject to the jurisdiction thereof…’

Being a legal layman, I tend toward literalism.

Personally, I read that clause and immediately think “This pertains to people giving birth who identify their allegiance with the United States.”

In other words, not Ambassadors (or their staff). Not tourists. Certainly not an invading army.

Assuming I’m right…

What about people sneaking into the country illegally and giving birth while visiting?

To me, as a layman, I’ve got to wonder why so many people are trained in constitutional law are failing to distinguish between birthright citizenship and the problem of anchor babies.

I’m assuming it’s because, by their training and experience, they know more than I on the subject.

If so, I really with they’d let me in on it.

Especially…

…since at least one knowledgeable commenter (The Heritage Guide to the Constitution) seems to agree:

Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either.

The Civil Rights Act of 1866 had previously asserted that “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.” The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that “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.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction” did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “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.”

I just had a conservative attorney say this in response to my question: “Yes, I know and understand the wrong arguments. They are wrong.”

But he didn’t tell me how they are wrong, or how such an argument has fared in the Courts.

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