I’m amazed how it is that so many of today’s so-called
“Constitutional Experts”, be they presidential candidates or TV talking heads
seem to be anything but. Especially as far as our illegal immigration problem goes. Because while parts of Donald Trump’s
immigration plan may raise serious constitutional questions, the part that has
now launched a media firestorm—ending birthright citizenship for the children
of illegal aliens— most certainly does not.
The Constitution’s Fourteenth Amendment does not confer citizenship on
the children of foreigners, whether legal or illegal. So this is yet another area of our
Constitution where those on the left, and a good many of those on the right, read
only what they ‘want’ to read.
Now I freely admit that I’m about as far removed, as
anyone can possibly get, from being an expert on the Constitution. As must be a goodly number of our media
commentators who have continued to get this issue so completely, and so thoroughly
dead wrong. And I was somewhat surprise
to hear that even Fox News’s Judge Andrew Napolitano, whom I have always held
in rather high regard because of what I thought was his apparent knowledge
regarding our Constitution, has now said that the Fourteenth Amendment is “very
clear,” and its Citizenship Clause commands that any child born in America is
automatically an American citizen. On
the contrary, not only is that’s not the law, it never has been the law. Come on, Judge!
Under current immigration law—found at 8 U.S.C. §
1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of
state, or (3) foreign military prisoner is not an American citizen. This is
from the Immigration and Naturalization Act of 1952 (INA), as it has been
amended over the years. So after all these years is this federal law
unconstitutional? No, it is not! The Citizenship Clause of the Fourteenth
Amendment states as follows: “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.” Today’s debate can be said to turn on the six
words, “subject to the jurisdiction thereof.”
As those familiar with history are no doubt well
aware, the Thirteenth Amendment—which ended slavery—barely passed Congress
because of the large number of Democrats who supported slavery, and it was only
through the political genius and resolve of ‘Republican’ President Abraham
Lincoln that the proposed amendment passed Congress in 1865. In 1866, Congress passed a Civil Rights Act
to guarantee black Americans their constitutional rights as citizens, claiming
that the Constitution’s Thirteenth Amendment gave Congress the power to pass
such laws. But many voted against the Civil Rights Act because they thought it
exceeded Congress’s powers, and even many of its supporters doubted its
legality.
It was the Civil Rights Act that included a definition
for national citizenship the purpose of which to guarantee that former slaves
would forever be free of the infamous Dred Scott decision which declared black
people were not American citizens. That provision 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.” However, nowhere does it say that anyone who
is able to sneak across our border, and then able remain undetected in this
country for any number of years automatically becomes a citizen of this
nation. Now that may be how some of our
politicians read it, but that doesn’t make it so.
That was the original meaning of the jurisdiction
language in the Fourteenth Amendment. A person who is “subject to the
jurisdiction” of the United States is a person who is “not subject to any
foreign power”—that is, a person who was entirely native to the United States,
not the citizen or subject of any foreign government. The same members of
Congress who voted for the Thirteenth Amendment in 1865 then voted to define
citizenship for freed slaves in a federal law in 1866, then voted again months
later in 1866—using only slightly different language—to put that definition of
citizenship in the Constitution, language that was ultimately ratified by the
states in 1868 as the Fourteenth Amendment.
And it was then in 1884 that the Supreme Court in
Elk v. Wilkins noted that the language of the Civil Rights Act was condensed
and rephrased in the Fourteenth Amendment and that courts can therefore look to
the Civil Rights Act to understand better the meaning of the Fourteenth
Amendment. The Court reasoned that if a
person is a foreign citizen, then their children are likewise not
constitutionally under the jurisdiction of the United States, and therefore are
not entitled to citizenship. In fact,
the Court specifically then added that this rule is why the children of foreign
ambassadors are not American citizens. That
is why Congress can specify that the children of foreign diplomats and foreign
soldiers are not Americans by birth.
The very simple fact is that these individuals are not
“subject to the jurisdiction” of the United States. Congress’s INA does not
grant them citizenship; federal law never has. Which then begs the question, why is a child
born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship
Clause is a floor, not a ceiling. Under
Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power
to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous
than the Constitution requires. Congress
could expand it to grant citizenship to every human being on earth, or narrow
it to its constitutional minimum.
The position of many in our state-controlled media
demonstrates quite clearly that they lack any serious knowledge regarding what
our Constitution actually says about immigration, or anything else for that
matter. As well, that seem to be quite
ignorant of what most of us see as being very clearly spelled out in our immigration
laws. This despite the fact that some of
the greatest legal minds in this country have discussed this issue nearly ad nauseam.
It’s just that no one has ever put any of them on camera to explain it. Scholars including Dr. John Eastman of Chapman
University, and even Attorney General Edwin Meese—the godfather of
constitutional conservatism in the law—reject the myth of birthright
citizenship.
Nor is rejection of birthright citizenship something
this is limited to only we conservatives. For instance, it was Judge Richard Posner—a
prolific scholar who, despite being appointed by Ronald Reagan, is a liberal
judicial activist—who wrote in 2003 in Ofoji v. Ashcroft: We should not be encouraging foreigners to
come to the United States solely to enable them to confer U.S. citizenship on
their future children. But the way to stop that abuse of hospitality is to
remove the incentive by changing the rule on citizenship. A constitutional amendment may be required to
change the rule whereby birth in this country automatically confers U.S.
citizenship, but somehow I seriously doubt it.
I would have to agree.
The purpose of the rule was to grant citizenship to
the recently freed slaves, and the exception for children of foreign diplomats
and heads of state shows that Congress did not read the citizenship clause of
the Fourteenth Amendment literally, and literally is how it is read today even
by those who should know better. Congress would not be flouting the
Constitution if it amended the Immigration and Nationality Act to put an end to
the nonsense. It is another question as
to whether Congress could strip citizenship from the children of illegals who
already have it. If Congress could do
that, then it could also strip citizenship from the many millions of foreigners
who came to the United States legally and went through the lawful process to
become Americans.
Trump, if elected, could rescind Barry “Almighty’s”
executive amnesty, but that executive order did not grant anyone citizenship,
and it would be a steep uphill climb in court to try to take someone’s
citizenship away. And if the children
already here are American citizens, then they could never be deported. Some other parts of Trump’s plan face even
longer odds. The Due Process Clause of
the Fifth Amendment to the Bill of Rights applies to all “persons,” not just
citizens. And the courts have always
held that due process requires any foreigner to be given a “meaningful hearing”
in court before being deported, and that would most certainly have an impact on
the pace of deportations.
Now I’m not going to do is sit here and make the claim
that Donald Trump’s position on immigration hasn’t changed, and pretty
drastically so, from his previous positions, just like his past support for
socialized healthcare and abortion. After
all, he has not yet explained why he changed his position on immigration, hence
the reason that more than a few voters still do not trust that he sincerely
holds to his current campaign positions.
But that being said, none of that changes the legality of his
immigration proposal. While parts of it
may face legal challenges, the fact is that denying citizenship to the children
of illegal aliens is fully consistent with the Constitution’s Fourteenth
Amendment.
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