Fourteenth Amendment Does Not Guarantee Citizenship to Children of Illegal Immigrants

Recent news has Donald Trump saying the Fourteenth Amendment is unconstitutional. In reading the transcript of the conversation he had with Bill O’Reilly I would say the headlines and media is taking it all out of context.

O’Reilly told Trump, “The 14th Amendment says if you’re born here, you’re an American!”

Trump responded with, “What happens is, they’re in Mexico, they’re going to have a baby, they move over here for a couple of days, they have the baby. Bill, [lawyers are] saying, ‘It’s not going to hold up in court, it’s going to have to be tested.’  I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree, but many of them agree with me—you’re going to find they do not have American citizenship.”

Trump is actually correct.

The Fourteenth Amendment was passed by Congress in 1866, following the Civil Rights Act of 1866, in an effort to nullify the Supreme Court’s Dred Scott decision. The issue here is the citizenship clause of the amendment, or Section 1. It 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The very first sentence is what most folks focus on in regards to the children of illegal immigrants, but what they fail to notice is the part separated by the two commas that clarifies exactly who is considered a citizen; “and subject to the jurisdiction thereof.”

So what does it mean to be “subject to the jurisdiction” of the United States? This was exactly the argument that took place, and clarified, in the Senate in 1866.

Senator Jacob Howard of Michigan was one of the framers of the amendment and he stated in his support of the wording, “This will not, of course, include persons in the United States who are foreignors, aliens, who belong to families of embassadors or foreign ministers accredited to the Government of the United States.”[1]

Senator Lyman Trumbull of Illinois further clarified by stating, “The provision is that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’”[2]

Senator Reverdy Johnson of Maryland stated, “I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subjects to the authority of the United States. I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States.”[3]

Now it can be argued that when illegal alien parent are here in the United States they fall under the jurisdiction of the United States. This is true to the extent that any person who is a foreign national falls under the laws when they are within the boundaries or territories of the United States, and cannot commit crimes without facing the criminal justice system. But the senators discussed that as well in regards to the proposed Fourteenth Amendment.

Again, Senator Trumbull clarifies, “They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”[4]

Senator George Williams of Oregon summed it all up near the end of the arguments, “In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect… I understand the words here, ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.”[5]

Now what does all this mean regarding the children of illegal aliens?

To sum it up, since the parents are here illegally, have not obtained legal visas to visit or work in the United States, they are therefore not under the full and complete jurisdiction of the United States. Since they entered without proper authorization and they still owe allegiance to a foreign government, their children born within the boundaries or territories of the United States are not considered citizens under birthright.

There are those in the liberal media who say the Supreme Court ruled in United States v. Wong Kim Ark, 169 U.S. 649 (1898)[6], that any child born in the United States to immigrant parents are therefore citizens of the United States because of birthright. The problem with this particular case is the parents were resident aliens in accordance to the law, had a business they legally operated in San Francisco, and had a permanent residence. In modern terms, they were legal immigrants with a green card.

Because of his parents being legal resident aliens they clearly fell under the jurisdiction of the United States, and therefore their son, being born in the United States, is clearly a citizen of the United States.

Now I could document the vast arguments that occurred in developing the wording of the Fourteenth Amendment and to the meaning behind the Citizenship Clause, but suffice it to say the arguments clearly meant for children born in this country of legal, resident aliens to be considered United States citizens. There is even discussion regarding illegal aliens in regards to those who live in the United States and have no allegiance to the United States being excluded from the amendment. If you want those, let me know and I will do a follow-up to this article.

So, to wrap it up, Donald Trump is correct; children of illegal aliens are not allowed to be United States citizens if they are born within the borders of the United States.

[1] A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875: Congressional Globe, Senate, 39th Congress, 1st Session; Library of Congress, 30 May 1866, page 2890; accessed 20 August 2015; http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11

[2] A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875: Congressional Globe, Senate, 39th Congress, 1st Session; Library of Congress, 30 May 1866, page 2893; accessed 20 August 2015; http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14

[3] A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875: Congressional Globe, Senate, 39th Congress, 1st Session; Library of Congress, 30 May 1866, page 2893; accessed 20 August 2015; http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14

[4] A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875: Congressional Globe, Senate, 39th Congress, 1st Session; Library of Congress, 30 May 1866, page 2894; accessed 20 August 2015; http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=15

[5] A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875: Congressional Globe, Senate, 39th Congress, 1st Session; Library of Congress, 30 May 1866, page 2897; accessed 20 August 2015; http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=17

[6] United States v. Wong Kim Ark; United States Supreme Court, 169 U.S. 649 (1898); Cornell University Law School; Accessed 20 August 2015; https://www.law.cornell.edu/supremecourt/text/169/649

One thought on “Fourteenth Amendment Does Not Guarantee Citizenship to Children of Illegal Immigrants”

  1. Excellent article, Jon. It’s a pleasure to read an opinion thoroughly researched and supported by including references to the source material. I can’t imagine where you find the time for your blog, but I am grateful that you do. Has there been a Supreme Court ruling regarding the citizenship clause of the 14th Amendment since U.S. v. Wong Kim Ark (1898)?

Comments are closed.