“The framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”
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Maureen Groppe, writing for USA Today, reports that “Trump signed an executive order on the first day of his second term directing federal agencies not to recognize the citizenship of babies born in the United States if neither parent is a citizen or lawful permanent resident. The order is widely viewed as a legal long shot.” But with constitutional conservatives like Clarence Thomas and Samuel Alito on the Court, who value the original intent of the Fourteenth Amendment’s framers, is Trump’s executive order really such a “long shot”?
President Trump’s executive order concerning birthright citizenship states the following:
The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment 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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford … which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
Trump’s order is in line with the intentions of the framers behind the Fourteenth Amendment, and the Supreme Court should rule in Trump’s favor, since the Constitution has not been changed since the amendment was written.
Here is what the Constitution says about birthright citizenship: “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.” This means that persons born in the U.S., but subject to the jurisdiction of another country, based upon their parents’ citizenship, are — according to the amendment’s original intent — not American citizens. Therefore, babies born to foreign nationals subject to the jurisdiction of Mexico are Mexican citizens.
The Fourteenth Amendment was created to ensure equal protection under law of former slaves, freed after the Civil War, who — as a result of having been subject to the jurisdiction of the United States before being freed — were to be recognized as natural-born or naturalized U.S. citizens. The authors of the amendment never wanted the offspring of criminally present aliens to be rewarded with U.S. citizenship.
Senator Jacob Howard, co-author of the Fourteenth Amendment with Senator Lyman Trumbull, explained the meaning of the clause “subject to the jurisdiction of the United States,” per the Congressional Globe of May 30, 1866, saying that the intent was not to allow illegal aliens – nor any foreigner from another country — to claim birthright citizenship, but simply to clarify that formerly enslaved persons were citizens, due to their never having been subject to any other jurisdiction than that of the United States. Constitutional language is always written to express universal principles that apply across cases, which is why the amendment does not mention slaves specifically.
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While discussing the proposed amendment before Congress, Senator Howard proclaimed the following:
This amendment … is simply declaratory of what I regard as the law of the land already, that 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 person.
Senator Edgar Cowan of Pennsylvania asked this rhetorical question: “Is the child of the Chinese immigrant in California a citizen?” And in later comments, Cowan asked, “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration? … Are they to be immigrated out of house and home by the Chinese?”
Senator Trumbull answered Cowan’s concerns, saying, “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.’” Referencing remarks by Senator James Doolittle of Wisconsin, Trumbull continued: “Now, does the Senator from Wisconsin pretend to say that the Navajoe [sic] Indians are subject to the complete jurisdiction of the United States? … Can you sue a Navajoe Indian in court?” (Navajos were, at the time, considered citizens of an independent Indian nation, unlike today, when every American Indian possesses U.S. citizenship.)
The Fourteenth Amendment also stipulates the following: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This sentence means that Congress may make legal clarifications without needing any new constitutional amendments. However, since Congress has never legislatively established a rule to allow criminally present aliens to create new American citizens by giving birth in the U.S., the legal situation may rightly be interpreted as one in which We the People have not altered the original intent of the amendment. Currently, Title 8, Section 1401, of the U.S. Code explains who may be considered a citizen, but the president, as chief law enforcement officer, may clarify enforcement policy with regard to illegals.
In absence of a congressional act — or any additional executive orders stating otherwise — President Trump’s January 20, 2025, executive order withholding citizenship from babies born to criminally present aliens serves as official law enforcement policy.
Paul Dowling’s book on the Constitution is Keeping a Free Republic — downloadable for $2.99. Additionally, Paul has contributed to Independent Sentinel and Free Thought Matters.
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Image via Flickr, public domain.