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IN FOCUS – Birthright Citizenship

Gavel With Book

Aristotle built his political theory on basic principles, one of which was the concept of citizenship.  A citizen is a person who has the right to participate in the processes by which his nation is governed.  Aristotle distinguished citizens from mere inhabitants of the nation who did not have such rights, such as resident aliens.  Although the definition of “citizens” is now much broader than in the third century BC, the concept of citizenship is central to the political system of every nation in the modern world.

The U.S. Citizenship and Immigration Service website explains that “Citizenship is the common thread that connects all Americans.  We are a nation bound by the shared values of freedom, liberty, and equality.”  The determination as to which persons are deemed “citizens” is crucial to the identity and survival of a nation.

Our Declaration of Independence makes clear that “Governments are instituted among Men, deriving their just powers from the consent of the governed.”  It is the “citizens” who constitute the Polity of the nation — We the People.  It is the People who formed the nation, and reserve the right to “alter or abolish it” should “Government become[] destructive of” the rights of the People.

Historically, the only way a foreigner can achieve U.S. citizenship is to begin as a lawful permanent resident — possessing a “green card.”  But today, the very concept of citizenship is under attack.  Some Republicans like Senators Marco Rubio (R-FL) and Lindsay Graham (R-SC) want to change the rules to create a “path to citizenship” for illegal immigrants.  Should that happen, we will have undone ourselves as a nation, as few of these immigrants share our common “values of freedom, liberty, and equality.”

But today we are focused on the citizenship of another group of people that are almost never discussed — those babies born in the United States to illegal aliens.

Anchor Babies

The dominant view today is that a baby born on U.S. soil is automatically a U.S. Citizen irrespective of the nationality of the baby’s parents.  Since the parents of a U.S. Citizen gain rights simply by being the parent of a U.S. Citizen, the children are called “Anchor Babies.”  When we had a border, pregnant women would cross the border in order to have their baby in the United States not just to obtain free medical care — but to obtain a U.S. birth certificate for their child and benefits for them.  That practice was called “birth tourism.”  As far back as 2016, Forbes magazine noted that one out of every 12 newborns was an “anchor baby.”

In 2018, President Trump raised the issue of ending birthright citizenship, he was roundly criticized.  However, in 2020, Trump boldly imposed restrictions on birth tourism.  Once again Trump was right, and his critics were wrong.

A constitutional analysis first published in 2001 is based on the legal research of the Founding Dean of Regent Law School, Herbert W. Titus, demonstrating why children born to illegal aliens in the United States are not citizens.  Here are the key points of that paper.

The Fourteenth Amendment

The Fourteenth Amendment 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.  [Emphasis added.]

Rep. John Bingham (R-IL), the House sponsor of the Fourteenth Amendment, stated,

I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.  [Emphasis added.]

The Supreme Court read the Fourteenth Amendment in line with the intent of its Framers.  In 1872, the Court ruled that the Amendment’s language:

“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.  [Slaughterhouse Cases, 83 U.S. 36, 73 (1872) (emphasis added).]

Twelve years later, the Court reiterated:

The main object of the opening sentence of the fourteenth amendment was to … put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States.  [Elk v. Wilkins, 112 U.S. 94, 101 (1884) (emphasis added).]

The Won Kim Ark Case

Sadly, 11 years later, the Court went off the tracks in United States v. Wong Kim Ark, 169 U.S. 649 (1898).  Although the holding of that case involving a child born to parents lawfully in the United States was not wrong, its analysis was deeply flawed, and application to illegal aliens is badly mistaken.   

The Court’s principal error was that it looked to English common law to define “citizenship.”  Under the English common law, anyone born on British territory was a subject of the King, even if that person later moved from English territory.  Dissenting, Chief Justice Fuller explained that the Court was mistaken to follow a rule that applied only to the British:

from 1795, no United States court had followed the English (i.e., British) common law rule that no British subject could ever renounce his allegiance to the crown. And for good reason, observing that the British common law rule arose out of feudal practice where individuals could be bought and sold with the property they farmed.

The Court also noted that the Fourteenth Amendment used the word “jurisdiction” twice in the amendment, as the Amendment also forbids states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”  But, in context, it is clear the Amendment’s second use of the word “jurisdiction” has a different meaning — as it refers to a person’s location within a state.

Thus, in dissent, the Chief Justice correctly concluded: 

If a stranger or traveler passing through or temporarily residing in this country, who has not himself been naturalized, and who claims to owe no allegiance to our government, has a child born here, which goes out of the country with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.  [Id. at 718-719 (Fuller, C.J., dissenting) (emphasis added).]

The author of a 2005 paper on this subject agrees, pointing out: 

illegal aliens are … on U.S. territory against the will of the American people, in a continuous state of disobedience to U.S. law, and despite the efforts of the U.S. Government to apprehend them.  Thus … there is no constitutional requirement that the U.S.-born children of illegal aliens be granted U.S. citizenship.

When the U.S. Supreme Court made its mammoth error about “birthright citizenship” in 1898, it was not trying to change the character of the nation.  However, today the Left is taking advantage of that constitutional error to “turn America blue” and ensure Democrat electoral college supremacy, perhaps for generations — perhaps permanently.

Editor’s Note: To read the articles in this series, please click here.

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