Birthright Citizenship

Cross Posted From Hang Right Politics 

An earlier post What next for Immigration? generated several comments about the 14th ammendment and how it applies to the illegal immigration debate. The 14th ammendment along with the 13th and 15th, are part of the Post-Civil War ammendments intended to secure rights for former slaves. It includes the Due Process and Equal Protection Clauses among others, and is widely regarded as one of the most important ammendments.

With regard to the children of illegal immigrants and thier citizenship status though there is some debate about the intent of the ammendment. First take a look at the language of the ammendment  itself.

Section 1. 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.

Had the intent of the ammendment been to grant citizenship to everyone who is born within the territory of the United States, All persons born or naturalized in the United States would have been sufficient to do exactly that. So the phrase, and subject to the jurisdiction thereof must therefore require something in addition to mere birth on U.S. soil to grant citizenship.

In 1866, Senator Jacob Howard,  clearly spelled out the intent of the 14th Amendment by writing:

“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.”

To my knowledge, the Supreme Court has never specifically ruled on the citizenship of the child of an illegal immigrant born in this country. Should such a case ever be added to the the Supreme Court dockett they will not only have to look at the text of the ammendment but also to the intent that the text was written. That intent is spelled out very clearly in the Congressional Record of the 39th Congress.   


  1. Malcolm

    It is pretty clear from the above quote of Sen. Howard that, although the 14th Amendment was written to prevent slaves and their descendents from being denied citizenship, it was the intention of its framers to exclude only the children of foreign diplomats in the “subject to the jurisdiction of the US” clause. (While the words “foreigners” and “aliens” may at first seem more broad, the following dependent clause defines these terms in this context.)

    Moreover, while the question of whether the children of illegal immigrants are citizens was never directly addressed by the Supreme Court, it did rule in 1898 (in the Wong Kim Ark case) that children of temporary legal immigrants are, and the arguments put forth against this proposition, and rejected by the Court, namely, that temporary legal residents are still subjects of their home country, are the same as those that are currently being used to interpret this Amendment as not applying to illegal immigrants.

    It seems that the only recourse to prevent children of illegal immigrants born in the US from automatically receiving US citizenship is through a Constitutional Amendment.

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