The debate over birthright citizenship has a long history. Thanks to President Trump, the issue is again crying out for reconsideration. Although birthright citizenship contrasts with citizenship by naturalization, the factors influencing past and current policy decisions for each remain similar. Resolution of the issues is now made necessary because of the issuance of the President’s Executive Order No. 14,160. Proper resolution requires re-examination of the historical truth as to what Congress intended to do and how Congress implemented that intent

The debate arose primarily because of a difference in birthright citizenship wording in the Civil Rights Act of 1866 and the birthright citizenship wording in the 14th Amendment of the Constitution. The citizenship wording in the Civil Rights Act of 1866, was enacted by the 39th Congress on April 9, 1866, and reads: “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...” Congress intentionally used the not subject to any foreign power wording to deny birthright citizenship to citizens of foreign countries. Foreign citizens (for birthright citizenship purposes) were deemed to have unacceptable loyalty, allegiance, and duties to other nations and, further, such other nations would have power over such persons in conflict with the power that the United States would have over its citizens and in conflict with the obligations and duties of U.S. citizens. The 39th Congress determined to add further strength to the provisions of the Civil Rights Act of 1866 by immediately incorporating the statutory provisions into a proposed new amendment to the Constitution. To that end, a citizenship clause was added to the proposed 14th Amendment. That Citizenship Clause was proposed to the 39th Congress on June 16, 1866, a mere 68 days after enactment of the citizenship clause in the Civil Rights Act of 1866: “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.”

Legislative history of the Senate clearly indicates that use of the word jurisdiction in the Citizenship Clause was intended to produce and was believed would produce the same result as the citizenship wording in the Civil Rights Act of 1866. At that time, Sen. Jacob Howard, who introduced the language of the jurisdiction clause, confirmed that the language in the Citizenship Clause referring to jurisdiction was: “...simply declaratory of what was already the law of the land.” (i.e. was already expressed in the “not subject to any foreign power” clause in the Civil Rights Act of 1866).

Senator Lyman Trumbull, concurring with Howard, declared:

“That means subject to the complete jurisdiction thereof... Not owing allegiance to anybody else. That is what it means... It cannot be said of any (person) who owes allegiance, partial allegiance if you please, to some other Government that he is “subject to the jurisdiction of the United States...”

Subsequent to adoption of the 14th Amendment, and in furtherance of the consistent intent and meaning of the two citizenship clauses, Congress actually removed any doubt as to congressional intent and the conditions for receipt of birthright citizenship when, on May 3, 1870, it dispositively reenacted all provisions of the Civil Rights Act of 1866, including the not subject to any foreign power citizenship clause. (See Section 18 of the Enforcement Act of 1870.)

Nonetheless, a faction of American citizens, some claiming to be experts, assert that the Citizenship Clause of the 14th Amendment provides automatic U.S. citizenship to any person born in the United States. First, the faction asserts that each such child born meets the jurisdiction requirements of the 14th Amendment since the child at birth is subject to U.S. jurisdiction in connection with miscellaneous laws binding on all occupants, such as laws prohibiting shoplifting and jaywalking. Second, the faction asserts that the child at birth meets all citizenship requirements regardless of whether one or both of the child’s parents are citizens of a foreign country, whether the child or one or more of the child’s parents are permanent U.S. residents, temporary visitors, or U.S. green card holders, whether one or more of the child’s parents unlawfully entered the U.S., or whether one or more of the child’s parents had committed or been convicted of a crime before or after entry into the U.S.

These assertions/interpretations/claims can instantly be recognized as in conflict with U.S. law and policies. Why?

As detailed above, those assertions do not meet the requirements for and conditions to birthright citizenship established in the Civil Rights of 1866, the 14th Amendment, and the Enforcement Act of 1870.

The Constitution is to be interpreted to the extent reasonable in a manner giving effect to all its parts and in a manner to avoid conflict or repugnancy with what was intended by its authors. It is therefore appropriate that the Citizenship Clause be interpreted so that it does not circumvent, impede, disrupt, or conflict with other citizenship laws, immigration laws, and the established rules, regulations, and policies of the Immigration and Naturalization Service. Such rules include, but are not limited to, eligibility requirements that the person (a) be of good moral character (certainly not one being raised as part of a family violating U.S. immigration law), (b) demonstrate an attachment to the principles and ideals of the U.S. Constitution, (c) be able to read, write , and speak basic English, (d) have a basic understanding of U.S. history and government, and (e) take an oath of allegiance to the United States.

No compelling explanation has been issued by any court or otherwise as to why the 39th Congress would enact a law denying natural-born citizenship to a person subject to a foreign power (a non-citizen) and then 56 days later propose a law to the extreme contrary.

The definition of the word jurisdiction per Lexis-Nexis is: “both the authority or power of the court to determine a dispute between parties.” When a child is born in the United States, courts in the United States have no such judicial authority or power over the child, since there is then no existing dispute to be adjudicated. There is no case or controversy.

How should appellate courts and the Supreme Court rule in the current citizenship cases? First, because Trump is likely to prevail on the merits, the Supreme Court should vacate the temporary nationwide injunction preventing implementation and enforcement of the Executive Order. Second, the Supreme Court (reversing the much-disputed Wong Kim Ark decision) should hold that the citizenship jurisdiction wording in Article 1, Section 1 of the 14th amendment has the same meaning as the “no foreign power” clause in the Civil Rights Act of 1866, as initially enacted and as re-enacted in the Enforcement Act of 1870. Only then will automatic birthright citizenship be denied to children born to citizens of foreign countries, to persons whose allegiance, loyalty, and duty are to countries or ideologies inconsistent with the principles on which America is founded, to foreign persons who have entered for temporary educational, work, or vacation purposes, to foreign persons taking advantage of the so-called birth-trade, and to foreign persons who have illegally entered the United States or have committed other crimes.

Image: AT via Magic Studio

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