The 14th Amendment Denies Birthright Citizenship To Children Of Illegal Aliens

The most fundamental question a country must answer pertains to defining its citizenship requirements - this is more of a bedrock matter than the issues we discuss every day - tax policy, healthcare, climate change, the national debt, the budget deficit, & even adequate national defense.

This post will explain the history of American citizenship as it pertains to the 14th Amendment & in particular show how the claim to birthright citizenship by illegal aliens for their children born on American soil is one of the worst abuses & exploitations ever inflicted on the United States.

Every day foreigners illegally enter the United States, like hiding in the trunk of a car @ midnight, to claim citizenship for babies born on American soil.  The Pew Research Center estimates that approximately 295,000 such babies (known as anchor babies) were born to parents who were not authorized to be in the United States in 2013 representing 8% of the 3.9 million U.S. births that year.  If the foreigners are pursued by the authorities before the baby is born & the foreigners leave the country the baby is not claimed to be an American citizen.  Who can think this game of hide & go seek is what the writers of the Constitution intended?

The anchor baby scam has existed mostly around our southwest border for decades but more recently Chinese couples have participated in "birthright tourism" schemes where pregnant Chinese women are coached on how to trick U.S. customs inspectors including how to hide their pregnancy & then stay in a "maternity hotel" until giving birth to what they think is a U.S. citizen.

The ultimate benefit of having an anchor baby is that the child becomes the source of what's known as "chain migration" where the entire family moves to America for a better life including a better education & healthcare.  These people selfishly butt in line ahead of people who have applied for citizenship following the rules to come to America & assimilate.  The assimilation of immigrants into American culture has been an important feature of U.S. history.  Immigrants breaking into America on their own terms with no interest in assimilating only divides the nation.

The claim to birthright citizenship for children of illegal aliens is based on Section1 (the Citizenship Clause) of the 14th Amendment of the Constitution that reads "All persons born or naturalized in the United States, & subject to the jurisdiction thereof, are citizens of the United States & of the State wherein they reside." 

This text seems straightforward enough except for the phrase "subject to the jurisdiction thereof."  Accordingly,  we need to find out if the history surrounding the writing & ratification of the amendment reveals the clear meaning of the text as well as confirmation that the people of the day had this understanding of the finding.

The 14th Amendment, along with the 13th & 15th Amendments, are collectively known as the Reconstruction Amendments.  They were ratified in the aftermath of the Civil War to address issues of slavery & racial equality.  Specifically, the 14th Amendment's purpose was to settle the question of citizenship of the newly freed slaves (by the 13th Amendment ratified on December 5, 1865) by overturning the Supreme Court's 1857 Dred Scott decision which held that no black of African descent could be a citizen of the United States.  The 14th Amendment was not written specifically to address illegal aliens having anchor babies born in America that automatically become American citizens if for no other reason than there was no such thing as an illegal alien when the amendment was ratified on July 9, 1868.  The Amendment's authors' references to foreigners in this post covers illegal aliens. 

The Civil Rights Act of 1866, introduced on January 5, 1866, was the immediate predecessor of the 14th Amendment - the Act's first clause reads "All persons born in the United States & not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United states."

The principal author of the Citizenship Clause of the 14th Amendment was Senator Jacob Howard of Michigan who eliminated the phrase "Indians not taxed" from the text of the 14th Amendment.  Howard did not intend to make Indians citizens of the United States with his new language & explained that "Indians born within the limits of the United States, & who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States."

Illinois Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee confirmed this understanding saying "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States."  The "anybody else" means any foreign nation or tribe whatsoever & "complete jurisdiction of the United States" is to owe no allegiance to any other country or tribe, i.e., exclusive allegiance to the United States.  Indians, he went on, were not "subject to the jurisdiction" of the United States because they owed allegiance, even if only partial, to their tribes.  Accordingly, the 14th Amendment was consistent with the Civil Rights Act of 1866 to establish two requirements of United States citizenship: 1) born or naturalized in the United States & 2) subject to its jurisdiction.

So right here the claim of birthright citizenship of the children of illegal aliens is seen to be false.

Going further - "jurisdiction" did not mean simply subject to the laws of the United States or subject to its courts; it meant much more, specifically, "jurisdiction" meant exclusive "allegiance" to the United States which of course illegal aliens & their children did not have.

Senator Howard explained that the requirement of "jurisdiction" understood in the sense of "allegiance," "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."  See image below.

click on image to enlarge.

And of course the authors of the 14th Amendment affirmed that all persons in the United States are subject to United States  law, i.e., both obligated to protect it & entitled to its protection - but not everyone on United States soil had complete allegiance to the United States.                                                                                                                                                                                                                                                                                     

Senator Edgar Cowan of Pennsylvania clarifies:

"If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit assault & battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word."

Senator Cowan provided examples above of the partial jurisdiction that any sovereign state claims over aliens on its soil.  I provide the example of an Englishman here on vacation - he clearly has to abide by our laws while here like driving on the right side of the road - not the left.  He is subject to our partial or territorial jurisdiction but not our complete jurisdiction - he cannot be drafted into our Army, vote in American elections, or be tried for treason because his complete allegiance is to England.  When a foreign tourist leaves America the ephemeral jurisdiction he was subject to while here disappears (ceases to exist).  By comparison, when a United States citizen (or green-card holder) travels outside the United States they maintain their citizenship status including being subject to the income tax laws & military draft if in effect - this is true even if the move is permanent.

Chief Justice John Marshall addressed this ephemeral jurisdiction by saying in Schooner Exchange v. McFaddon (1812) that foreigners here on "business or caprice" owe a "temporary & local allegiance" to the United States & are therefore "amenable to the jurisdiction of the country" while they are here.  The ephemeral jurisdiction Chief Justice Marshall described was clearly different from the complete jurisdiction required by the Citizenship Clause.

Senator Howard further clarified the meaning of the jurisdiction clause, endorsing the above interpretation of Senator Trumbull:

"I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."

By definition - 1) the “constitutional power of the United States” is not “coextensive” with foreign nations, i.e., they do not reach the same boundaries or cover the same area, & 2) the “same jurisdiction in extent and quality as applies to every citizen of the United States now” cannot apply to foreigners. To claim otherwise is to claim that U.S. law applies to foreigners even when they are residing in their own countries!  It is to claim, in effect, that U.S. law rules the world.  Which it does not.

Maryland Senator Reverdy Johnson added yet another supportive, clarifying comment:

"Now, all this amendment provides is that all persons born in the United States & not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States.  That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself & the United States, & the amendment says that citizenship may depend upon birth, & 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 subject to the authority of the United States."

Senator Johnson's remarks address the anchor baby problem plaguing America today.  He expresses the common sense that if the parents are in the country illegally that the child is also & should not be awarded citizenship.  In addition, wouldn't the country where the parents are citizens expect the child to be a citizen of that country?  This would be true for illegal aliens or a pregnant French tourist who has a child early while on vacation in America - wouldn't France say the child is a French citizen?

In an earlier debate, explaining to the House the purpose & meaning of the citizenship clause of the 1866 Civil Rights Act, Ohio Congressman John Bingham said:

"I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."

The source of the foregoing quotes are from a piece entitled Birthright Citizenship: A Response To My Critics by Michael Anton, lecturer & research fellow @ Hillsdale College & senior fellow @ the Claremont Institute.  The actual quotes come from the Congressional Globe, an ancestor to the Congressional Record, which records congressional debates.  All of the senators' quotes are from the Senate debate on the 14th Amendment, May 30, 1866.

Based on the above documentation it is clear that the authors of the 14th Amendment did not intend for the children of illegal aliens to become citizens of the United States based on the child's birth in America.  The 14th Amendment was ratified on July 9, 1868 when the 28th state legislature out of thirty-seven approved the Amendment.  In ratifying the 14th Amendment the state legislatures confirmed the authors' intent being understood by the contemporary public as evidenced by the following five examples that occurred in the years after ratification.  Please note that all three branches of government acknowledged in these examples (two judiciary, two executive, & one legislative) that birthright citizenship was not automatically conferred to children of foreigners or anybody who did not have complete & full allegiance to the United States   

This understanding was confirmed in the 1873 Slaughterhouse cases contested before the Supreme Court.  The syllabus of the decision included a statement that the phrase "subject to its jurisdiction thereof" in the Fourteenth Amendment was intended to exclude children of foreign ministers, consuls, and foreign citizens/subjects born within the United States.  

Specifically on pages 83 U.S. 72 & 73 of the decision made on April 14, 1873: '"The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship . . . The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."'

The SCOTUS writeup in the Slaughterhouse cases certainly confirms the understanding that birthright citizenship is not automatically conveyed to children born in the United States of illegal aliens, although this finding was not the primary purpose of the case, which dealt with the question of whether the 14th Amendment extended the privileges or Immunities of the State Action Clause (aka the Privileges or Immunities clause) to the States.

In 1879, acting Secretary of State Frederick Seward reviewed the case of the late James W. Smith, an expatriate who had served in the Mexican army & had two minor sons aged seven & ten @ the time of his death.  Secretary Seward concluded that the boys would not be American citizens if the father's change of allegiance from the United States to Mexico had occurred before the boys were born in America, if Mexico attached Mexican nationalism to them while still minors, or if they remained in Mexico & became Mexican citizens.  The boys were awarded American citizenship because the father's change of allegiance occurred after the birth of the youngest child. 

In the Elk v. Wilkins case (1884) the Supreme Court decided that a native Indian who had renounced allegiance to his tribe did not become "subject to the jurisdiction" of the United States simply by his renunciation.  "The alien & dependent condition of the members of the Indian Tribes could not be put off @ their own will, without the action or assent of the United States" signified either by treaty or legislation.  Neither the "Indian Tribes" nor "individual members of those Tribes," no more than "other foreigners" can "become citizens of their own will."  Source - Edward Erler, The Heritage Guide To The Constitution, page 385.

In 1885 the State Department rejected the citizenship claim of Ludwig Hausding - a man born in Michigan to parents who had not been naturalized.  In so doing the Secretary of State relied on the Citizenship Clause of the 14th Amendment saying "the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship."

Congress confirmed that the understanding of the writers & ratifiers of the Citizenship Clause of the 14th Amendment pertains to the issuance of the Indian Citizenship Act of 1924.  This act was necessary because Indians were not considered citizens of the United States.  Why? Because, although born on American soil, they owed their political allegiance to their tribal government, not the government of the United States.

The above five examples verify the original understanding of the people when, & for years thereafter, the 14th Amendment was ratified; namely that children born in the United States of illegal aliens were not subject to the jurisdiction of the United States & therefore they were not citizens of the United States.   But over time, especially during FDR's administration, the Supreme Court's interpretation of the 14th Amendment shifted from its original meaning to a more expansive view particularly when FDR & subsequent presidents began to bestow more rights on individuals including dual citizenship that became officially recognized in 1967 when the Supreme Court struck down most laws that had banned dual citizenship (Afroyim v. Rusk).

In 1898 the Supreme Court heard the case United States v. Wong Kim Ark - a case involving a plaintiff born in the United States to parents who had full legal-resident status & owned a business (they were not temporary visitors to the United States & they were not illegal aliens) - they were subject to the complete jurisdiction of the United States.  The SCOTUS found that Wong Kim Ark was a citizen of the United States relying on both English common law regarding jus soli & the natural born citizen requirement of Article II, Section 1, Clause 5.  This is the case that Progressives rely on when they claim anybody born in the United States is a citizen.  The reality is that the Supreme Court has never done an analysis like the one I present hereinbefore nor made a ruling or determination that the children of illegal aliens are citizens of the United States merely because of the child's birth in the United States.

It is insulting to the intelligence of every American citizen for Progressives to claim that the authors of the 14th Amendment intended that children born during their mother's illegal presence in the United States automatically receive citizenship thereby becoming the direct beneficiary of their parents breaking our laws.  Their continued presence in the United States depends on evading the law rather than submitting to it or showing allegiance to America.  Who in their right mind thinks our Constitution confers a benefit based on an illegal act?

We should put an end to this malicious exploitation in the next five minutes.

Reference - Trump's Executive Order dated January 20, 2025 denying birthright citizenship to children of illegal & non-resident aliens