November 1, 2018, 5:14 PM EST; update Nov. 2, 2018
written by Net Advisor™
EXCERPT: President Donald Trump recent said that the 14th Amendment does not cover ‘birthright citizenship,’ because of the words “subject to the jurisdiction thereof.” This is a very interesting argument, and it is not a new argument. Many in the media and politicians on both sides have misquoted the Constitution. We reviewed various opinions, case laws, what the Constitution actually says, and what the author of the 14th Amendment actually intended.
What Does The U.S. Constitution Say About the 14th Amendment?
“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.”
— Amendment XIV, Section 1., Source: Cornell Law School (website) (PDF)
Background History & Intent
The 14th Amendment was ratified to the U.S. Constitution on July 9, 1868, and was one of three Reconstruction Amendments. These Reconstructive Amendments to the Constitution had nothing to do with people migrating to the USA; rather, these Amendments dealt the rights of freed slaves by President Abraham Lincoln (R – IL).
“Long before the Union victory in 1865, Congress prepared for the many challenges the nation would face at war’s end, particularly the integration of four million newly emancipated African Americans into the political life of the nation, and the readmission to federal representation of former states in rebellion. Congressional Reconstruction included the Thirteenth, Fourteenth, and Fifteenth amendments to the Constitution which extended civil and legal protections to former slaves.”
Recall the reason why the U.S. even addressed this and other issues was that the Southern Confederates (Democrats), fought against the (Northern Union Army -The United States), and led by Republican President Lincoln and his military designees.
After Lincoln’s election, a number of (D) states broke (seceded) from the Union to keep what they said were “States Rights.”
The rights the seceded states wanted was to keep slavery legal in the South.
Lincoln’s 1863 Emancipation Proclamation, and Executive Order “changed the federal legal status of more than 3.5 million enslaved African-Americans in the designated areas of the South from slave to free.”
Reportedly some 620,000 soldiers were killed during the Civil War – all for the single purpose: To insure that the U.S. would outlaw slavery, grant legal rights to the slaves, and such could not be challenged by Confederate (D) Courts, or be undone by future pro-slavery presidents.
The only way to block the courts or future presidents from reversing Lincoln’s Proclamation and Executive Order was to add a new Amendment to the Constitution.
This lead to the 13th, 14th, and 15th Amendments. In short,
13th Amendment (original document)(text)(Abolishes Slavery).
Section 1. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Section 2. “Congress shall have power to enforce this article by appropriate legislation.”
14th Amendment (original document)(text)
Section 1. Stated above, page top.
Section 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Note the 14th Amendment was later changed slightly by the 26th Amendment.
15th Amendment (original document)(text)
Section 1. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Section 2. “The Congress shall have the power to enforce this article by appropriate legislation.”
The Reconstruction Amendments provided additional protection to blacks (African-Americans) in the USA at the time.
“The Reconstruction amendments to the Constitution extended new constitutional protections to blacks, though the struggle to fully achieve equality would continue into the twentieth century.”
Note the Reconstructive Amendments did not say: Anyone who crosses the U.S. border and who are not U.S. citizens, or who entered the USA legally or illegally, and who were later born in the U.S. regardless of residency status; and or when such alien person(s) under foreign jurisdiction, automatically get U.S. citizenship?
Deleting Language to Fit a Narrative
Many people misinterpret the meaning and language in the 14th Amendment. Some in the media and members of both major political parties clearly don’t understand law or the Constitution.
The false and misleading manta is that ‘President Trump can alter the Constitution by Executive Order.’ Anyone who thinks this, or says this is just ignorant of the law.
First, that is not what the President actually said; And no one person, nor one party can alter the U.S. Constitution.
The process to make alterations or Amendments to the U.S. Constitution is outlined in Article V and nearly impossible to achieve in modern politics.
Such Amendment requires two-thirds (66%) vote by the House, plus two-thirds (66%) vote by the Senate, AND then ratified by three-fourths (75%) of State Legislatures. The two-thirds vote in both the House and Senate overrides a Presidential Veto, so it doesn’t matter how a president votes in this case.
When it comes to the 14th Amendment, many media, politicians and others seem to think that the 14th Amendment means, ‘if you are born in the USA, you are automatically U.S. citizen.’ This was NOT the intent by the author of the 14th Amendment, nor does it reflect what the 14th Amendment actually says.
Explicit Intent of the 14th Amendment
House Joint Resolution No. 127 was brought to the floor of Congress by Republican Senator Jacob M. Howard (1805-1871) of Michigan who proposed the 14th Amendment to the U.S. Constitution:
“All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”
Senator Howard continued:
“…This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of embassadors (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.”
— Sen. Jacob Howard (R-MI), Source: Congressional Globe, 1774-1895 (website)(PDF)
14th Amendment Analysis
When it comes to law, key words and phrases can have a material impact on interpretation. Based on the actual wording of the 14th Amendment, there is a key phrase that arguably differentiates the class of whom the Amendment applies.
One should note that there is no such legal phrase as “undocumented” as many in the media and politicians use. Congress defined the language and legal terms in their Bills. Henceforth, Congress defined what the term “Alien” means. It’s a term that is not meant to be disparaging, it’s just a legal term and reference that has been used for over two hundred years.
(3) “The term “alien” means any person not a citizen or national of the United States.”
— Source: Cornell Law School
The language and the intent of the 14th Amendment is clear:
- One must already be “subject to the jurisdiction thereof” – meaning that a person or alien is not subject to the legal jurisdiction of another country; and
- Must already reside in the United States; and
- Be an existing U.S. citizen by lawful means.
The author of the 14th Amendment outlined the intent of the 14th Amendment to specifically not include foreigners, aliens, ambassadors, foreign ministers and required jurisdiction.
In other words, an alien could not come to the U.S. pregnant, or become pregnant if one of the said excluded classes, and themselves, or their offspring, suddenly be granted U.S. citizenship, especially when the alien is already under a foreign jurisdiction (has citizenship in another country).
This isn’t about racism, misogynous or any of the political labels used to shutdown debate. It’s really about that the U.S. (or any other country) could not sustain the entire world’s population of anyone who wanted to come and live in a host country at will; claim rights, including voting – which would entirely change the legal landscape of a country to another type of government, which could ignore all the original lawful citizens who would be at risk of lose their rights.
Further, benefits are exclusive to lawful citizens or permanent residence of those countries as such laws apply. That is why all modern countries have immigration laws, borders and why immigration must be regulated in all modern, especially large, populated countries.
Asylum & the Constitution
Chart above: Very few people are actually granted asylum because they fail to meet the legal requirements.
The U.S. Constitution does not provide aliens unlimited legal rights for those claiming asylum.
Asylum is not an absolute right; and can be changed without a Constitutional Amendment because there is nothing in the Constitution regarding asylum to amend.
Because you have family in the USA (legally or not) or want a better job, does not qualify for asylum.
“Noncitizens who are encountered by, or present themselves to, a U.S. official at a port of entry or near the border are subject to expedited removal, an accelerated process which authorizes DHS to perform rapid deportations of certain individuals….
(such)…Individuals who are placed in expedited removal proceedings and who tell a Customs and Border Protection (CBP) official that they fear persecution, torture, or returning to their country or that they wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer.”
— American Immigration Council, 05-14-2018 (website)(PDF)(bold emphases added).
So one really has to demonstrate, specifically articulate, and convince border police that they will definitely suffer persecution or torture (due to race, religion, nationality, membership in a particular social group, or political opinion) if they go back to their home country (Source: DHS).
In 2017, only about 2 in 10 people were granted lawful asylum in the United States.
Presidential & AG Authority
A President may be able to use Executive Authority to temporarily change asylum laws and clarify birthrights, but this could be rescinded by any future President.
Under current law, the Attorney General (AG) does have the authority to make limitations and set conditions for asylum.
“The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1)”
The AG could make asylum highly restrictive to require that one must legitimately prove that someone is actually going to be harmed because of say their religious views.
Courts or other Plaintiffs who attempt to challenge an Attorney General who may make (even temporary) limitations or setting new conditions for asylum, may be quashed as the law provides “no judicial review” when there is a risk of danger to the United States.
“There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).”
This danger does not have to specifically be terrorism, or criminal, but can be argued that the threat of a massive group is a potential risk because any one of the members of the group could place the U.S., or its People at a Public Safety risk; carrying an unknown health risk into the country; or other potential risk(s). In total, such (mass migration) members, could present themselves to the U.S. as an “economic threat” [Report 1, Report 2].
Foreign Citizens Sue America While in Mexico?
Can you imagine U.S citizens who disagree with the policies of a foreign government, when those U.S. citizen(s) don’t live in the foreign country, have no citizenship in the foreign country, have no other interests (property, business, etc.) in that country, thus have no jurisdiction thereof, then sue the foreign country to try and get a court to change the lawful policies made by elected officials of that foreign country, against the will of the lawful citizens of that foreign country?
We’ll that is exactly what is happening now, but against America.
A group of migrants, allegedly part of a fourteen-thousand “caravan” with no address, no one to identify them, are now suing [Court Docs], the Trump Admin et al., (aka The United States).
Plaintiffs are not on U.S. soil, thus do not have jurisdiction, are apparently citizens of foreign nation(s), are tying to block whatever action the Trump Administration might do, so they can force their way to enter the United States via the U.S. courts.
Some members in the lawsuit are suing not for themselves, but on behalf of their (claimed) minor children.
Members of the delusional group also claim Trump is ‘their President.’ If they are citizens of a foreign nation, then Trump is not their President.
Our view is the litigants currently have no legal standing. The Supreme Court required a three-part test in order to determine whether a party has standing, in re: Warth v. Seldin (1974); Lujan v. Defenders of Wildlife (1992). The plaintiff(s) must also show they are in immediate danger.
“The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”
— in re: Ex parte Levitt, 302 U.S. 633, 634 (1937).
By the way, the U.S. Supreme Court threw out that case, when the plaintiff was U.S. citizen, and U.S. lawyer. That “danger” applied to and in the U.S.; and does not apply to citizens of foreign counties.
One cannot sue, based on events or actions that have not happened; thus one cannot based on speculation that any rights not yet acquired, might be violated in the future; nor one cannot sue where one has not demonstrated that they were damaged by another party.
Lawsuits Prohibited in Asylum Claims
One cannot sue the United States for an asylum claim or for a rejected asylum claim. Only a court (having jurisdiction) has the final say [8 CFR § 1240, seq.] .
“No private right of action.
Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.”
If the Attorney General can take such legal actions, then the Chief Executive (The President) would also have such authority under U.S. Constitution Article II to enforce federal laws.
The 14th Amendment Due Process and Equal Protections
The author of the 14th Amendment also discussed due process and equal protection.
“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”
(emphases added to note the class of whom the 14th Amendment specifically applies.)
— Sen. Jacob Howard (R-MI), Source: Congressional Globe, 1774-1895 (website)(PDF)
Republic Congressman Jacob Pitzer Cowan (1823-1895) from Ohio, weighed in asking what rights or equal protections do (non-citizens) have?
“If a traveler comes to here from Ethiopia, from Australia, or from Great Brittan, he is entitled, to certain extent, to the protection of laws. You cannot murder him with impunity…you cannot commit assault and battery on him. He has the right to protection of the laws; but he is not a citizen in the country in the ordinary acceptation of the word.”
— Rep. Jacob Pitzer (R-OH), Source: Congressional Globe, 1774-1895 (website)(PDF)
Rep. Pitzer continued, stating the 14th Amendment does not grant automatic rights to non-citizens just because they were born in the USA. This includes that foreign aliens born in the USA do not have the right to exercise “political power” or become “an elector” (ibid).
Equal Protection Analysis
The intent of the 14th Amendment provides equal protection to non-citizens in the USA, but not the same protections as if he or she were a citizen according to Rep. Pitzer.
The U.S. Has Made it Very Easy to Become a Citizen – Naturally
In 2017 alone, the U.S. naturalized 707,265 new citizens. From 1820 to 2017, the U.S. granted Lawful Permanent Resident Status to 83,861,792 people (Excel Chart, PDF). Over the last three years, that’s over 1 million people a year were granted legal residency. Granting Residency is not the same as granting citizenship, however. The majority of new Lawful Permanent Residents are coming from – Asia.
All you have to do to become a U.S. citizen via naturalization is:
- Generally be 18 or older.
- Fill out an application.
- Take a test – (which most U.S. students probably could not pass if their life depended on it*).
- You need to understand and answer (in English) with a grade of “D” (6 of 10 correct to pass).
- Been a permanent resident for at least 5 years and meet all other eligibility requirements.
- Been a permanent resident for 3 years or more and meet all eligibility requirements to file as a spouse of a U.S. citizen.
- Qualifying service in the U.S. armed forces and meet all other eligibility requirements.
- Child may qualify for naturalization if you are U.S. citizen, the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met.
- Pay (currently) $725 fee (cheaper than using a human trafficker) and you probably can get that waived.
- And there are all kinds of other exemptions and exceptions.
- Be a person of good moral character. (This means gang members & other criminals cannot become citizens).
- Must be able to read, write and speak basic English.
- Note the many ways to become a U.S. citizen does not say, ‘crossing the U.S. border illegally, and then taking up residence qualifies.’
As of June 2018, if one lies, cheats or previously did such on their citizenship application, they can be stripped of their U.S. citizenship status and be subject to deportation. This generally has applied to those who used fake identities who later got green cards (website)(PDF).
Is There Case Law to Support Birthright Citizenship?
Many have wrongly interpreted that existing case law has already determined U.S. citizenship. This is not true. Let’s take a look at some key cases.
The U.S. Supreme Court ruled in Dred Scott v. Sandford (1856) where, “a negro, whose ancestors were imported into (USA), and sold as slaves” could not be free American citizens.
This case had to do with a labor dispute and if such persons were not deemed U.S. citizens, then the Plaintiffs would not have legal standing to bring forth a case. This law was nullified after Congress passed the Civil Rights Act of 1866 and further nullified by the 13th and 14th Amendments.
The Civil Rights Act of 1866 granted citizenship to those born in the U.S. but EXCLUDED those who were subject to any foreign power, (and) ‘excluding Indians not taxed.’
Thus, if you are a citizen of a country, that is not the United States, those people are excluded from this act regarding birthright citizenship.
The Indians gained citizenship through the Indian Citizenship Act of 1924 [8 USC § 1401 (b)] but again, this also required this repeated theme, “subject to the jurisdiction thereof” [8 USC § 1401 (a)]. Thus, if one was an Indian resident, under the legal jurisdiction from another foreign country, you could not come to the USA and claim U.S. citizenship status.
The law also discusses anyone who is unable to determine their parents (“unknown parentage”) while under five years of age, and until shown by the time they reach age twenty-one, is deemed not born in the U.S., ie: not deemed a U.S. citizen.
In other words, say an alien gave birth in the USA who is not in the U.S. legally, unless the other parent is U.S. citizen under [8 USC § 1401]; that person may not be deemed a citizen.
However if the mother is U.S. citizen and the father is not, then the child, meeting the criteria, “subject to the jurisdiction thereof” [8 USC § 1401 (a)], and born in the USA, then that child is deemed U.S. citizen [8 USC § 1401 (g)(h)].
Some argue that the Supreme Court case, United States v. Wong Kim Ark (1897) makes that any foreign national who has a child in the USA is automatically a U.S. citizen. This is not true.
The 14th Amendment does not say, anyone born on U.S. soil is U.S. citizen. In this particular case, the Court did not find that citizenship was automatically granted just because one was born in the USA. The U.S. v. Ark case had extenuating cause to grant citizenship.
In the Ark case, the subjects were of Chinese descent, and had a child in the USA. The parents already lived and worked in the USA, had an existing business in the USA, and were not employed nor diplomats of the Chinese government.
The child lived in San Francisco, California with his parents his entire life, was 24 years old at the time of his SCOTUS case, thus would have been Naturalized anyway. He went to visit China, and upon his return, he was stopped at U.S. customs who denied him entry into the U.S. because U.S. Customs said Ark could not prove citizenship.
This case would arguable not apply to a foreign national who came to the USA pregnant; or to a foreign national who got pregnant by a another foreign national while in the USA; or to any national who entered the U.S. illegally; who were not U.S. citizens; had no established or existing U.S. business interests; had no U.S. investment or other property interests; and prior to their U.S. arrival, were deemed citizens of a foreign government; thus, “not subject to the (U.S.) jurisdiction thereof.”
In these types of cases, if the law is followed correctly, their children would not be deemed U.S. citizens.
In Elk v. Wilkins (1884), the U.S. Supreme Court denied citizenship to a native Indian born in the U.S. because his loyalty was to his tribe, not to the United States. The Court deemed John Elk was subject to the jurisdiction thereof his tribe, and not of the United States.
Elk departed his affiliation with his tribe, resettled to Oklahoma, paid U.S. taxes, and attempted to vote in U.S. elections. The High Court said that Elk had ‘never been naturalized as an American citizen through a treaty or statute.’
It wasn’t until Congress passed the Dawes Act in 1887 granting citizenship to U.S. native born Indians – IF, they accepted certain conditions.
“…the Dawes Act in 1887 gave American citizenship to all Native Americans who accepted individual land grants under the provisions of statutes and treaties. But the issue of American Indian birthright citizenship wouldn’t fully be settled until 1924, when Congress conferred citizenship on all American Indians under the Indian Citizenship Act.”
This required territorial jurisdiction under the United States.
“…all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”
— Source: constitutioncenter.org
The 1887 Daws Act did not apply to other classes, only to American-born Indians.
Another case involving citizenship occurred in the 1800’s in re: Inglis v. Trustees of Sailor’s Snug Harbor (1830).
The case involved the transfer of an estate to a man born in New York in 1776.
Inglis was granted citizenship because he was born on U.S. soil (Jus soli), however this case law did not apply to U.S. born or alien children after British occupation of New York.
There was about a two month window the Plaintiff had to claim citizenship before the British occupied New York.
Those born in *New York* during British occupation did not have U.S. Citizenship, but rather, were now under the jurisdiction thereof, Great Britain.
Jus Soli still requires one to be subject to jurisdiction [8 USC § 1401]. An alien (non US citizen) would not qualify under Jus Soli because the alien is under the jurisdiction of a foreign power.
Next, some cite Plyler v. Doe (1982) as an example where the 14th Amendment Equal Protection Clause makes a person a citizen.
Some make this argument because non-citizen (alien) children living in the U.S. are entitled to a free basic K-12 education. Granting citizenship and permitting one to attend school, is a huge legal leap beyond what the Supreme Court said in this case.
The State of Texas was going to charge non-U.S. citizen children for the costs of their public education. Texas argued the high costs of funding education for illegal aliens was a huge burden for the taxpayers of the state. Citizen taxpayers pay money to the state for public education and many foreign nationals do not.
The Supreme Court ruled that the 14th Amendment Equal Protection Clause did extend to providing non-U.S. citizen children already residing in the U.S. to a basic education.
The Court ruled that Texas would have to come up with a better solution to address their illegal immigration problem.
Foreign national children residing in the U.S. (even illegally) would not be subject to paying school fees, if other U.S. citizen children did not have to pay such fees.
It should be noted that the U.S. Supreme Court did not make any of these kids, or anyone else automatic U.S. citizens.
The Nevada Democratic Senator, Harry Reid, who eventually became Senate Majority Leader from 2007-2015 said this in 1993:
Note: Since our post, YouTube has since deleted the video below:
Congress could change this birthright debate by passing a law, and they actually tried.
Birthright Citizenship – Not a Law
Probably the funniest thing the media and many others have incorrectly argued is that the U.S. has “Birthright Citizenship.”
The fact is “Birthright Citizenship” does not even exist.
“Birthright Citizenship” is a PROPOSED bill [H.R. 140] in the 115th Congress that, if passed by the House, the Senate and signed by a President, would “amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth.”
Here is the shocker:
Not ONE single Democrat has co-sponsored this bill. The Bill was introduced by Republican Rep. Steve King of Iowa. As of 07-20-2018, “Birthright Citizenship” had 48 Republican co-sponsors; and again ZERO Democrat support.
Democrats scream and yell a lot about ‘rights for minorities and immigrants,’ but when it comes down to actual actions, they could care less. If they did, they would be all over making non-U.S. citizens born in the U.S. instant citizens.
In general, Birthright Citizenship of foreign nationals is nothing more than an assumption, and our findings suggest it is not supported by the U.S. Constitution or by existing federal law.
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