Birthright Citizenship is Unconstitutional

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Published on: August 19, 2015

Are children of illegal aliens born on American soil U.S. citizens? The Constitution says no.

Here is the actual language of the 14th Amendment (emphasis mine):

“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.”

Birthright citizenship only belongs to those who were subject to the jurisdiction of the United States the moment they were born. But children of illegal aliens are not.

Their parents are not subject to the jurisdiction of the United States but rather of their home country, which is why they can be immediately deported if identified and apprehended. You can’t do that to an American citizen.

Since the parents are not subject to the jurisdiction of the United States, neither are their children. They are, in plain fact, not citizens of the U.S. by birth.

This is why the children of diplomats who are born on U.S. soil are not U.S. citizens. Since their parents are not “subject to the jurisdiction” of the United States, neither are the children.

We are all familiar with the concept of “diplomatic immunity,” which diplomats often use to get themselves and their children out of trouble on American soil by claiming that the children are not under the authority of American law. All the American government can do in such circumstances is send them back to their home country. That is, all they can do is deport them.

Here is how Ken Kuklowski puts it (emphasis mine):

If an illegal alien has a child on American soil, the Constitution does not require the child be granted American citizenship. Congress can give citizenship to anyone it wants, but the Fourteenth Amendment only commands citizenship to persons born on U.S. soil to parents who are not citizens of a foreign country…

While many erroneously claim that the Fourteenth Amendment guarantees citizenship to anyone born on American soil, the reality is that is not the law and has never been the law. Current immigration law–found at 8 U.S.C. § 1401(a)–specifies that a baby born on American soil to (1) a foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

But if the view promoted by the Left that citizenship is automatic (and parroted by many in the middle and even on the Right who have not seriously studied the issue) is correct, then those three exceptions would be unconstitutional. The debate over birthright citizenship turns on what the Citizenship Clause means by the words “and subject to the jurisdiction thereof.”

Every provision of the Constitution has a fixed meaning. Because only “We the People” can adopt a constitutional provision–all 27 amendments in the Constitution were proposed by two-thirds of the House and Senate, then ratified by three-fourths of the states–the only legitimate way to interpret the Constitution is in accordance with the original meaning of those terms.

So the question becomes: What was the meaning of the Jurisdiction Clause in 1868 when the Fourteenth Amendment was ratified? One of the best tools for determining that is looking at the Civil Rights Act of 1866, enacted the same year that the Fourteenth Amendment was written by Congress…

The Civil Rights Act included a provision to define American citizenship to secure it for former slaves. It read, “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…”

[T]he Civil Rights Act’s parallel language, “and not subject to any foreign power,” instead shows the Jurisdiction Clause excludes all citizens of any foreign country. The Citizenship Clause was intended to overrule the most infamous Supreme Court case in American history–the 1857 Dred Scott case–and ensure free blacks born in America could not be denied citizenship. It was never designed to make a citizen of every child born to a foreigner.

The way forward is simple. Section 5 of the 14th Amendment gives power to Congress to “enforce, by appropriate legislation, the provisions of this article.”

Let’s elect a conservative president in 2016 who will work with a conservative Congress, which has the sole authority under the Constitution to determine immigration policy, to enact a law specifying in no uncertain terms that children of illegal aliens born on American soil are not American citizens.

Some well-meaning Republican candidates are calling for an amendment to the Constitution to ban birthright citizenship. But, in truth, the Constitution does NOT need to be amended. It only needs to be applied.

Bottom line: Are children of illegal aliens American citizens? No. Why? Because the Constitution says they aren’t.

(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)

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