Trump Right Tp Challenge Birthright Citizenship

                               TRUMP RIGHT TO CHALLENGE BIRTHRIGHT CITIZENSHIP

 

                                                                                     By

 

                                                                       Daniel John Sobieski

 

The late Supreme Court Justice Antonin Scalia was what we call an “originalist” when it came to interpreting the U.S. Constitution. He believed the only way to read the Constitution was in the context of the times when its provisions were written which formed the intent of those who wrote and later amended it. We could only interpret what they meant by reading what they wrote through the filter of the events of their day, not our day.

The issue of the 14th Amendment and whether it conveys birthright citizenship just from being born on American soil has resurfaced in the context of the current debate on immigration and border security. The answer can be found in looking at the times in which it was written and examining the actual words and thoughts of those who wrote it.

The 14h Amendment was written in 1868 after a bitter Civil War ended slavery. It was written to ensure the civil rights of freed slaves and to correct the injustices spawned by the 1857 Dred Scott decision which denied that blacks were entitled to citizenship under the U.S. Constitution. Surely it cannot be seriously argued that the authors of the 14th Amendment had in mind babies born to residents of Mexico, Guatemala, Honduras and El Salvador who managed to sneak their pregnant bodies past a U.S. Border Patrol that didn’t exist yet in violation of immigration laws that hadn’t been written yet.

Like abortion rights, which were divined from the “penumbras” and “emanations” said to be lurking somewhere in that document, supporters of birthright citizenship say, well the language is imprecise and the authors didn’t really mean to exclude the offspring of Guatemalans born in states which didn’t exist in 1868. This is ia clear violation of the Scalia originalist doctrine. The Constitution is not a living document and should be read in the context of the events of 1868, not 2019.

President Trump has once again noted the absurdity of the modern interpretation of the 14th Amendment that invented the concept of birthright citizenship for illegal aliens. As reported by FoxNews:

Speaking to reporters outside the White House on Wednesday, President Trump again threatened to end what he called the "ridiculous" policy of birthright citizenship, which awards citizenship automatically to those born in the United States.

"We're looking at that very seriously," Trump told reporters as he left the White House for Kentucky. "Birthright citizenship, where you have a baby on our land — you walk over the border, have a baby, congratulations, the baby's now a U.S. citizen. We're looking at it very, very seriously ...It’s, frankly, ridiculous."

Indeed it is according to Heritage Foundation senior legal fellow Hans A. von Spakovsky who argued that birthright citizenship supporters play word games to justify their position:

In an op-ed published last year by FoxNews.com, Heritage Foundation senior legal fellow Hans A. von Spakovsky said critics "conveniently ignored or misinterpreted" the 14th Amendment's requirement that illegal immigrant children be "subject to" the jurisdiction of the United States.

"The fact that tourists or illegal immigrants are subject to our laws and our courts if they violate our laws means that they are subject to the territorial jurisdiction of the U.S. and can be prosecuted," Spakovsky wrote. "But it does not place them within the political 'jurisdiction' of the United States as that phrase was defined by the framers of the 14th Amendment."

Spakovsky added: "Today many people do not seem to understand the distinction between partial, territorial jurisdiction – which subjects all foreigners who enter the U.S. to the jurisdiction of our laws – and complete political jurisdiction, which requires allegiance to the U.S. government as well."

During debate on the Fourteenth Amendment, Sen. Jacob Merritt Howard of Michigan added jurisdiction language specifically to avoid accident of birth being the sole criteria for citizenship. And if citizenship was determined just by place of birth, why did it take an act of Congress in 1922 to give American Indians birthright citizenship, if they already had citizenship by birthright under the14th Amendment?        

Rep. John Bingham of Ohio, who is regarded as the father of the 14th Amendment, said it meant 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 Supreme Court has never explicitly ruled that the children of illegal aliens must be granted automatic birthright citizenship under the 14th Amendment and many legal scholars dispute the idea.

Chapman University and a fellow at the Claremont Institute, argued that illegal aliens are still foreign nationals and are not subject to U.S. jurisdiction, except for purposes of deportation, and therefore their children born on American soil should not be automa...:

John Eastman of the Claremont Institute testified before the subcommittee, saying, the Supreme Court has never actually held that anyone who happens to make it to U.S. soil can unilaterally bestow citizenship on their children merely by giving birth here.

Although such an understanding of the Fourteenth Amendment has become widespread in recent years, it is not the understanding of those who drafted the Fourteenth Amendment, or of those who ratified it, or of the leading constitutional commentators of the time. Neither was it the understanding of the Supreme Court when the Court first considered the matter in 1872, or when it considered the matter a second time a decade later in 1884, or even when it considered the matter a third time fifteen years after that in the decision many erroneously view as interpreting the Fourteenth Amendment to mandate automatic citizenship for anyone and everyone born on U.S. soil, whether their parents were here permanently or only temporarily, legally or illegally, or might even be here as enemy combatants seeking to commit acts of terrorism against the United States and its citizens.

Eastman argues that the modern view of the Fourteenth Amendment ignores a key phrase in the Citizenship Clause. Mere birth on U.S. soil just isn’t enough. “A person must be both ‘born or naturalized in the United States’ and ‘subject to its jurisdiction.’”

In a interview with Fox News’ Tucker Carlson in July, Michael Anton, a former Trump national security adviser, pointed out:

"there’s a clause in the middle of the amendment that people ignore or they misinterpret – subject to the jurisdiction thereof….

"What they are saying is, if you are born on U.S. soil subject to the jurisdiction of the United States — meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. “If you are here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.”

There may be hope though for correctly interpreting the 14th Amendment through a court case as President Trump reshapes the courts, particularly the Supreme Court, with justices of a more “originalist” bent. The misinterpretation could be corrected through clarifying legislation or even by executive order. We can correct it and we should. Donald Trump was right - becoming a U.S. citizen should require more than your mother successfully sneaking past the U.S. Border Patrol.

 

 

         Daniel John Sobieski is a former editorial writer for Investor’s Business Daily and free lance writer whose pieces have appeared in Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.              

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Comment by Larry Puckette on August 24, 2019 at 3:15am

"It was written to ensure the civil rights of freed slaves and to correct the injustices spawned by the 1857 Dred Scott decision which denied that blacks were entitled to citizenship under the U.S. Constitution."

WRONG!!   it was written to make us all individually under the jurisdiction of the federal government. Before the 14th amendment the federal government had to go through our states's government to enforce federal laws upon us individually.  --- IN FACT, that's what the civil war was fought about -- to establish federal government supremacy over the states and make us all individually under the authority of the federal government.

Slavery was just an guise excuse for the civil war, and ensuring blacks were protected was just a guise excuse for the 14th amendment. The 14th amendment (national authority) was the goal of the civil war, per Lincoln himself;

Executive Mansion,
Washington, August 22, 1862.

Hon. Horace Greeley:
Dear Sir.

I have just read yours of the 19th. addressed to myself through the New-York Tribune. If there be in it any statements, or assumptions of fact, which I may know to be erroneous, I do not, now and here, controvert them. If there be in it any inferences which I may believe to be falsely drawn, I do not now and here, argue against them. If there be perceptable in it an impatient and dictatorial tone, I waive it in deference to an old friend, whose heart I have always supposed to be right.

As to the policy I "seem to be pursuing" as you say, I have not meant to leave any one in doubt.

I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.

I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.

Yours,
A. Lincoln.

http://www.abrahamlincolnonline.org/lincoln/speeches/greeley.htm

...and the atrocious consequences of the amendment gained under false premises continues still today

Comment by Patricia Gillenwater on August 23, 2019 at 10:25pm

We have a brave and strong President and I agree babies of those who invade our country are NOT citizens.

If a person who is on a travel visa and oops drops a baby on our soil that child is not a U.S. citizen.

The 14th is NOT a living amendment. Law scholars can twist the meaning of the word"is" politicians twist words to fit an agenda then work to normalize what benefits their agenda.

Stay aways with original intent and viewed from the lens of the time.

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