by Bill Connor, Colonel, US Army (Ret)
On Oct. 31, 2018. Then, 45th President Donald Trump Tweeted out: “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words; subject to the jurisdiction thereof.’ Many legal scholars agree. …”. After Trump was sworn into office as the 47th President, he signed an executive order (EO) ending recognition of so-called birthright citizenship.
A day later, as I write this article, the EO is being contested in court. Trump was right about this issue as the 45th President and he was right signing the EO as our 47th President. Though many on the left have charged the president with trying to rewrite the Constitution, ending birthright citizenship would be following the original meaning of the 14th Amendment and remaining true to the Constitution. I believe Congress should take the lead from Trump’s EO, follow the 14th Amendment, and definitively end birthright citizenship by statute.
Section 1 of the 14th Amendment begins: “All persons born or naturalized in the United States.” Stop at those nine words and birthright citizenship would appear to be clear. The clause, however, contains a critical caveat: “and subject to the jurisdiction thereof, are citizens of the United States.” It’s important to understand why the 14th Amendment included a provision for citizenship, as intent helps provide the original meaning. The 13th, 14th and 15th Amendments were drafted and passed in the immediate aftermath of the Civil War. The 13th Amendment ended slavery, the 14th Amendment ensured due process and equal protection for former slaves, and the 15th Amendment guaranteed former slaves the right to vote. The amendments were to protect the rights of former slaves and ensure citizenship could not be questioned.
Additionally, the citizenship clause of the 14th Amendment helped end any argument that citizenship in the United States was solely founded upon citizenship to a state first. This had justified the legality of serving in the Confederacy by following one’s state citizenship against the United States. The application of the citizenship clause did not include all those born on the territory of the United States in the years after it was drafted and does not to this day. A good example of the limitations of the clause can be seen with citizenship of American Indians.
At the time of the 14th Amendment, and for decades thereafter, native Americans were not granted citizenship despite being born within the geographic boundaries of the United States. Native Americans were only indirectly under the jurisdiction of the United States through the treaties with the various tribes. The babies born were not considered “subject to the jurisdiction thereof.” Congress, using the provisions of Section 5 of the 14th Amendment (The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article), and the Article 1, Section 8 (congressional power over naturalization/immigration) finally granted citizenship to native Americans in the 1920s.
Babies born to foreign consuls, ministers and ambassadors serving in the United States were not (and still are not) citizens, despite being born within the United States. Those babies are under the jurisdiction of their parents, and jurisdiction to their home nation. Similarly, babies born to those illegally entering the United States remain citizens of the countries from which the parents departed due to the status of their parents.
Examples abound of those who are not citizens despite birth on American soil, and interestingly, the Supreme Court has not yet ruled on the issue of the children of illegal immigrants obtaining birthright citizenship. In 1898, the court held in favor of citizenship for children whose parents were legal residents (permanent residents) in the case of birth within the United States. However, the court has never ruled on children of illegal aliens.
Rep. Aaron Sargent from California argued, without dispute by those who passed the 14th Amendment during the debates over the Naturalization Act of 1870, that the citizenship clause did not allow aliens to obtain citizenship by birth in the U.S. Mark Levin, a constitutional lawyer and former senior member of the Reagan administration, wrote: “If it (14th Amendment) means what the proponents of birthright citizenship say, it would stop right there. “All persons born or naturalized in the United States” are citizens. … Then it says, and, ‘subject to the jurisdiction thereof.’ … Jurisdiction has nothing to do with geography. Zero. It had to do with political allegiance to the United States of America. How do we know it? Because they (those drafting the 14th Amendment) said it. …”
Alleged birthright citizenship, used by countless illegal aliens to gain U.S. citizenship through anchor babies, is not constitutional, and the president is right to call it out. Though he has mentioned the idea of using executive order, Trump will hopefully not have to use that power. It is time for Congress, under its Article I, Section 8 duties to control immigration, to follow the will of the people and the Constitution and end birthright citizenship. Citizenship in the United States is something special. It should be bequeathed under the rule of law and to those who follow our laws.
Attorney Bill Connor
BILL CONNOR LAW FIRM, LLC
Originally released January 21, 2025 by the Stand Up America US Foundation
Photo by Anthony Garand on Unsplash
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