Newspaper column: Does the 14th Amendment require ‘birthright’ citizenship?

Following up on a stance taken during his election campaign President Donald Trump now says he will sign an executive order ending so-called “birthright” citizenship.

Trump told “Axios on HBO” he wants to “remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil.”

“How ridiculous, we’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” the president was quoted as saying. “It’s ridiculous. It’s ridiculous. And it has to end.”

As he did during the campaign Trump could not resist tweaking Nevada’s longtime senior Sen. Harry Reid.

“Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) ‘stuff.’ Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be settled by the United States Supreme Court!,” Trump wrote on Twitter.

In a 2015 position paper on immigration Trump said, “End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said ‘no sane country’ would give automatic citizenship to the children of illegal immigrants.”

Of course, Reid’s 1993 speech on the floor of the Senate was a rare lapse into rational thought, which he now says was a mistake and argues, “Immigrants are the lifeblood of our nation.” As opposed to citizens?

But in 1993 Reid said, “If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee access to all public and social services this country provides. Now that’s a lot of services. Is it any wonder that two-thirds of the babies born at taxpayer expense at county run hospitals in Los Angeles are born to illegal alien mothers?”

The argument that children born on U.S. soil are automatically U.S. citizens is loosely grounded in the 14th Amendment, passed after the Civil War, which says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”

The contention revolves around the phrase about being subject to U.S. jurisdiction.

In testimony before Congress in 2015, John C. Eastman, a law professor at Chapman University and founding director of the Claremont Institute Center for Constitutional Jurisprudence, explained the origin and meaning of the 14th Amendment citizenship clause.

He said the 1866 Civil Rights Act, from which the 14th Amendment was drafted, says, “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.”

Eastman concludes, “As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country … remained a citizen or subject of the parents’ home country …”

Some say birthright citizenship is the result of the 1898 Supreme Court case of U.S. v. Wong Kim Ark in which the court ruled 5-4 that a child born in the U.S. of parents of Chinese descent is a citizen by virtue of birth under the 14th Amendment. The Chinese Exclusion Act barred citizenship for the Chinese, though the parents were legal permanent residents. There was no such thing as an illegal immigrant at the time.

In fact, American Indians born on U.S. soil were not deemed citizens until the Indian Citizenship Act was passed in 1924. As columnist Hans von Spakovsky has noted, “There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.”

While Trump likely doesn’t have the legal authority to issue an executive order ending birthright citizenship, Sen. Lindsay Graham of South Carolina has said he would introduce legislation to do so.

Either way, there is sure to be litigation all the way to the U.S. Supreme Court, which does have the authority to settle the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

6 comments on “Newspaper column: Does the 14th Amendment require ‘birthright’ citizenship?

  1. bc says:

    One of the strengths of this country is the wide variety of people that live here. Folks come here and their children are citizens. A generation or two down the line you would not know the difference between them and someone who’s family goes back a hundred years.

    Compare that to European that do not have birthright citizenship. The folks who immigrate to these countries and their families never do become French or English because they are told that they are not allowed. A couple of generations down the line you have folks that are still on the outside looking in and the resentment can easily lead to radicalization and running people down in a truck.

    This is not about someone who comes here from Canada or Germany and has children, this is about people that come from Mexico or Syria, people that do not look like us. Trump pushing the racism card to fire up his base. I still cannot believe that Trumpism has taken over the Republican Party that I have belonged to for over 40 years.

  2. Rincon says:

    The greatest problem with the immigrant question is that it’s distracting us from more important issues. They simply aren’t doing very much harm and are probably a net benefit to the rest of us. I mentioned that Australia has double the percentage of immigrants as us, but their economy performs better than our. So much for the Conservative claim that immigrants are a drain on the economy.

    To prevent babies being born here, put up the fence, but once they are born here, bc is right. Failing to allow them some reasonable means of joining the country of their birth is a recipe for trouble.

  3. bc says:

    Trumps idea of a “great wall” is completely silly and stupidly expensive. Cannot imagine how you are going to do a wall through the middle of Big Bend National Park. The whole thing of the park is the river and the canyons that form the US/Mexico border.

    Most of the people screaming for this wall have never been to the border. Last time I was on the border in Texas and New Mexico was 8/10 years ago and the place looked like an armed camp then, cops, guys in green, helicopters flying up and down the border checkpoints everywhere and it is more so now. I do not get those who say our border is unprotected and open for anyone to come through.

  4. Athos says:

    Now that the Dems have the Congress, the wall is DOA (unless Trump can pull a rabbit out of his hat). Anchor babies are a death wish for a country with the welfare system we have. Eliminate all welfare or deny citizenship for illegal aliens. As to the 14th amendment…..check your history….

    “Birthright citizenship would have never been an issue if the democrat party didn’t support slavery and oppose citizenship for black people in the first place! The democrats playing a role in the interpretation of the Birthright Clause today is like an arsonist demanding to redesign the house he burnt down.”
    Keith A. Houchen

  5. Bill says:

    Everyone seems to continually conflate “immigration” and
    “illegal immigration”. They are not the same.

    There is nothing wrong with immigration. It is helpful and humanitarian. But there is a great deal wrong with illegal immigration. The world outside of the United States has millions of persons who would become citizens of this country if they could. Most are probably good people but there are a lot that are not. A world without borders is a wonderful Utopian dream but spells disaster in the real world. A country without borders is not a country. It must have the power, by law, to determine who can become members of that society. The social and economic cost of illegal immigration are enormous.

    Early on, we were a vast country with untamed frontiers and few people other than the Native Americans to inhabit that land. Thus, for the most part, our government has encouraged and welcomed legal controlled immigration to populate the land and sadly, to erase the natives..

    We no longer have those vast tracts of land demanding settlement and we are no longer an agrarian society but now live in a complex industrialized society that depends upon laws that regulate our conduct and economy and monetary scheme.

    One of the hallmarks of our earlier immigration policies was to foster the integration of legal immigrants into the uniquely American society. Thus, even today, we demand a certain basic knowledge of our system to become a legal citizen. The requirements are not too onerous but many of our leaders eschew such niceties as learning the language or coming to this country legally. If anyone tries to suggest any measures of limitation or require learning English, the cry of “racism” is immediately trotted out. Witness the recent intentional conflation of “nationalism” to deem it a code word for white power. Why discuss when one can automatically trot out a racial pejorative.

    It is a simple fact that unfettered, illegal immigration is a direct challenge to the sovereignty of a country. Wholesale marches in defiance of a countries immigration law are a threatened invasion, albeit not by force of arms but an invasion none the less.

    The history of the 14th Amendment does present a viable argument that birthright citizenship does not immediately confer citizenship to a child born in this country whose parent was not here legally. At least it would in most Federal Circuit Courts other than the 9th District.

    Legislation may be coming. It is probably doubtful that Trump can effect the interpretation of the 14th Amendment by executive order but like so many Trumpian forays into the sensational, it does present the issue and bring it to the fore for public discussion.

    What is mildly amusing is that for the courts to decide the question it may involve some interpretation beyond the mere words of the 14th Amendment. Strict construtuction Anyone?

  6. Rincon says:

    Only radicals advocate an open border.

    If Athos feels that Democrats have no right to interpret the 14th Amendment, then how about Native Americans who say Americans of European ancestry should have no right to vote, since they stole the continent in the first place? How long is your statute of limitations? 150 years seems just a bit long, don’t you think?

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