Donald Trump Is Emphatically Correct About Birthright Citizenship

By Josh Hammer

Birthright citizenship for children of illegal aliens is, at best, a live and unsettled legal debate. But the original meaning is quite clear.
Less than two weeks into this second Trump presidency, the fearmongering has already reached fever pitch. “He can’t do it!” the critics have invariably howled in decrying President Donald Trump’s landmark day-one executive order upending the status quo on birthright citizenship for the children of illegal aliens, “Protecting the Meaning and Value of American Citizenship."

The usual suspects in the punditocracy say Trump’s order is “blatantly unconstitutional” and that it “violates settled law.” Perhaps it’s even “nativist” or “racist,” to boot!
Like the Bourbons of old, pearl-clutching American elites have learned nothing and forgotten nothing. Because when it comes to birthright citizenship, the virtue signaling and armchair excoriation is not just silly — it’s dead wrong on the law. Trump’s Jan. 20 executive order on birthright citizenship is legally sound and fundamentally just. The maestro of Mar-a-Lago deserves credit, not condemnation, for implementing such a bold order as one of his very first second-term acts.
The citizenship clause of the 14th Amendment, ratified in 1868, 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.” The clause’s purpose was to overturn the infamous 1857 Supreme Court case, Dred Scott v. Sandford, and thereby ensure that Blacks were, and would forever be, full-fledged citizens.
But Blacks were here from America’s beginning. The ruinous slavery debate aside, in 1868 Blacks were thus universally viewed — unlike, for example, American Indians — as “subject to the jurisdiction” of the United States. (Congress did not pass the Indian Citizenship Act, which finally granted birthright citizenship to American Indians, until 1924.) Our debate today thus depends on whether, in 1868, aliens — legal or illegal — were considered “subject to the jurisdiction” of the United States.
They weren’t.
In the post-Civil War Republican-dominated Congress, the 14th Amendment was intended to constitutionalize the Civil Rights Act of 1866, which had passed two years prior. Rep. James Wilson (R-Iowa), then House Judiciary Committee chairman and a leading 14th Amendment drafter, emphasized that the amendment was “establishing no new right, declaring no new principle.” Similarly, Sen. Jacob Howard (R-Mich.), the principal author of the 14th Amendment’s citizenship clause, described it as “simply declaratory of what I regard as the law of the land already.”
In other words, the 14th Amendment formalized the Civil Rights Act of 1866. And the citizenship clause of that law reads: “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.” In other words, “subject to the jurisdiction thereof” necessarily excludes those “subject to any foreign power.” As then-Senate Judiciary Committee Chairman Sen. Lyman Trumbull (R-Ill.) said during the 14th Amendment ratification debate, “subject to the jurisdiction” means subject to the United States’ “complete” jurisdiction — that is, “not owing allegiance to anybody else.”
The 14th Amendment thus constitutionally requires that neither legal nor illegal aliens be afforded birthright citizenship. (Whether Congress passes additional rights-bestowing laws of its own volition is a separate matter.)
This understanding was unchallenged for decades. In the 1873 Slaughter-House Cases, Justice Samuel Miller interpreted the citizenship clause as “intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” And in the 1884 case of Elk v. Wilkins, Justice Horace Gray held that “subject to the jurisdiction” means “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
It’s true that Gray inexplicably reversed course in an oft-cited 1898 case, United States v. Wong Kim Ark. Over a powerful and compelling dissenting opinion joined by Justice John Marshall Harlan, the sole dissenter in Plessy v. Ferguson, Gray held that there is some level of birthright citizenship for the children of aliens. But even in that wrongfully decided case, the court emphasized that its holding was limited to children of “resident aliens” who were under “the allegiance” of the United States. The court repeatedly emphasized that its holding only applied to those legitimately “domiciled” here.
In no world whatsoever does Gray’s pro-birthright citizenship opinion in Wong Kim Ark apply to children of illegal aliens. Eighty-four years later, in Plyler v. Doe, the court dropped a superfluous footnote indicating that Wong Kim Ark applies to the children of illegal aliens too. But this nonbinding footnote from Justice William J. Brennan Jr., a leading liberal, does not the “law of the land” make.
Fourteenth Amendment-mandated birthright citizenship for children of illegal aliens is, at best, a live and unsettled legal debate. But the original meaning is quite clear: The amendment’s draftsmen would have been aghast at the notion that people who broke our laws and entered our soil illegally could then be afforded birthright citizenship for their children. The drafters likely foresaw, as so many today do not, the tremendous perverse incentives induced by such an ill-conceived policy.
The so-called legal eagles are wrong. And Trump, yet again, is right.

https://patriotpost.us/opinion/114129-donald-trump-is-emphatically-correct-about-birthright-citizenship-2025-01-31

Original Intent Of The 14th Amendment

Original Intent Of The 14th Amendment

The 14th Amendment to the U.S. Constitution reads in part:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."

Babies born to illegal alien mothers within U.S. borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. (Jackpot babies is another term).
The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.
Post-Civil War reforms focused on injustices to African Americans. The 14th Amendment was ratified in 1868 to protect the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves. It was written in a manner so as to prevent state governments from ever denying citizenship to blacks born in the United States. But in 1868, the United States had no formal immigration policy, and the authors therefore saw no need to address immigration explicitly in the amendment.
Senator Jacob Howard worked closely with Abraham Lincoln in drafting and passing the Thirteenth Amendment to the United States Constitution, which abolished slavery. He also served on the Senate Joint Committee on Reconstruction, which drafted the Fourteenth Amendment to the United States Constitution. In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

This understanding was reaffirmed by Senator Edward Cowan, who stated:

"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."

The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

Supreme Court decisions

The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called "Slaughter-House cases" [83 US 36 (1873) and 112 US 94 (1884)](13). In the 1884 Elk v.Wilkins case (12), the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was considered not an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."
The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.
Congress subsequently passed a special act to grant full citizenship to American Indians, who were not citizens even through they were born within the borders of the United States. The Citizens Act of 1924, codified in 8USCSß1401, provides that:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.

In 1898, the Wong Kim Ark Supreme Court case (10,11, 16) once again, in a ruling based strictly on the 14th Amendment, concluded that the status of the parents was crucial in determining the citizenship of the child. The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. In fact, it did not address the children of illegal aliens and non-immigrant aliens, but rather determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14th Amendment.
The original intent of the 14th Amendment was clearly not to facilitate illegal aliens defying U.S. law and obtaining citizenship for their offspring, nor obtaining benefits at taxpayer expense. Current estimates indicate there may be between 300,000 and 700,000 anchor babies born each year in the U.S., thus causing illegal alien mothers to add more to the U.S. population each year than immigration from all sources in an average year before 1965. (See consequences.)
American citizens must be wary of elected politicians voting to illegally extend our generous social benefits to illegal aliens and other criminals.

For more information, see:

1.   P.A. Madison, Former Research Fellow in Constitutional Studies, The UnConstitutionality of Citizenship by Birth to Non-Americans (February 1, 2005)
2.   Madeleine Pelner Cosman, Ph.D., Esq., Illegal Aliens and American Medicine The Journal of the American Physicians and Surgeons, Volume 10 Number 1 (Spring 2005)
3.   Al Knight, Track 'anchor babies', Denver Post (September 11, 2002)
4.   Al Knight, Change U.S. law on anchor babies, Denver Post (June 22, 2005)
5.   Tom DeWeese, The Mexican Fifth Column (January 27, 2003)
6.   Anchor Babies: The Children of Illegal Aliens (Federation for American Immigration Reform)
7.   Tom DeWeese, "The Outrages of the Mexican Invasion" (American policy Center)
8.   P.A. Madison, Alien Birthright Citizenship: A Fable That Lives Through Ignorance The Federalist Blog (December 17, 2005)
9.   Dr. John C. Eastman, Professor of Law, Chapman University School of Law, Director, The Claremont Institute Center for Constitutional Jurisprudence, Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty - Testimony, U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Border Security and Claims (September 29, 2005)
10.   William Buchanan, HR-73 -- Protecting America's Sovereignty, The Social Contract (Fall, 1999) - includes discussion of the related Wong Kim Ark 1898 Supreme Court case
11.   Charles Wood, Losing Control of the Nation's Future -- Part Two -- Birthright Citizenship and Illegal Aliens, The Social Contract (Winter, 2005) - includes discussion of the related Wong Kim Ark court case
12.   U.S. Supreme Court ELK v. WILKINS, 112 U.S. 94 (Findlaw, 1884)
13.   U.S. Supreme Court Slaughter-House cases ('Lectric Law Library, 1873)
14.   Jacob M. Howard, Wikipedia.
15.   A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875 Congressional Globe, Senate, 39th Congress, 1st Session Page 2890 of 3840.
16.   United States v. Wong Kim Ark, 169 U.S. 649 (1898), Justia.com.

https://www.14thamendment.us/birthright_citizenship/original_intent.html

U.S. Rep. Matt Gaetz, (R-FL) files to end birthright citizenship for children of illegal immigrants.

(Of course, it won’t make it past the Satanic Senate ruled by the Democrats, but at least it will already be written and ready for Trump to sign it IF he makes it back into the White House.)
CRESTVIEW, Fla. (FLV) – Rep. Matt Gaetz, R-Fla., filed the End Birthright Citizenship Fraud Act of 2023, which would amend the Immigration and Nationality Act to state that birthright citizenship only applies to U.S.-born children of legal American citizens.
”My legislation recognizes that American citizenship is a privilege – not an automatic right to be co-opted by illegal aliens,” Gaetz told Breitbart News, who was the first to report on the legislation.
“Birthright citizenship has been grossly and blatantly misapplied for decades, recently becoming a loophole for illegal aliens to fraudulently abuse our immigration system,” he continued. “This is an important step in preserving the sanctity of American citizenship and ensures that citizenship is not treated as a loophole to be exploited, but rather a privilege to be earned, when legally migrating to our country.”
Often referred to as anchor babies, the Center for Immigration studies reported in 2018 that roughly 300,000 children are born in the country each year to parents who are illegally residing within the nation’s borders.
Gaetz’s bill was introduced to Congress after Gov. Ron DeSantis had enacted several anti-illegal immigration measures in Florida and cooperated with other states to combat human and drug trafficking at the U.S-Mexico border.
DeSantis brought together “like minded” sheriffs and governors in June to strategize on how to assist border states such as Texas and Arizona in combatting illegal immigration.
“I think we’ll be able to do a lot working together, probably not gonna be able to solve everything because we need DC to get in gear, but I think we’re going to be able to make a difference,” he said.

https://flvoicenews.com/gaetz-files-to-end-birthright-citizenship-for-children-of-illegal-immigrants/