By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.
Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally; in California, signatures are being gathered for a ballot proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.
The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.
The text of the ratified Citizenship Clause embodies the jus soli rule of citizenship, under which citizenship is acquired by right of the soil (contrasted with jus sanguinis, according to which citizenship is granted according to bloodline.) This form of citizenship embodies the American rejection of aristocracy and privileged ancestry; under the Citizenship Clause, one's citizenship turns on an objective circumstance-place of birth-not familial status.
The Reconstruction Framers' intent to make citizenship dependent not on the favor of the majority or the favored status of a person's ancestors, but rather on neutral, fixed conditions is evident from congressional debates. In proposing the language that would ultimately be ratified as the Citizenship Clause, Senator Jacob Howard of Michigan explained that his proposed addition would declare "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."
Recognizing the sweep of this proposed language, both supporters and opponents of the Fourteenth Amendment understood the Citizenship Clause to grant birthright citizenship to children of aliens. In fact, this was a significant source of opposition: Senator Cowan lamented that the proposal would expand the number of Chinese in California and "Gypsies" in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit "trespass" within the country. No supporter of the Amendment rose to dispute Senator Cowan's view of the effect the proposed Amendment would have. To the contrary, Senator John Conness of California defended the proposed Citizenship Clause as sound policy, stating:
[With] respect to the children begotten of Chinese parents in California, ... it is proposed to declare that they shall be citizens .... I am in favor of doing so .... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
In sum, the Citizenship Clause was proposed, enacted and ratified with the understanding that it granted automatic birthright citizenship to children born in the United States to alien parents.
As a final note, it is worth mentioning that the expansive Citizenship Clause was not forged in some more enlightened era. As the remarks quoted above demonstrate, along with the grand statements supporting liberty and equality, ethnic stereotypes and racial hostility were also on full display in the debates over the Fourteenth Amendment. But our Reconstruction Framers wisely placed the conditions for automatic citizenship beyond the prejudices and politics of the day, intending to establish "a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation." Today's anti-citizenship advocates are therefore not just flouting the Citizenship Clause's text and history when they seek to deny birthright citizenship to children born on U.S. soil to undocumented immigrant parents, they are also disregarding the Fourteenth Amendment's guiding principles and purposes.
Babies must be Naturalized too!
"Anchor Babies" is the carrot that attract illegal aliens to this country. The 14th amendment clearly states that children of illegal parents must become naturalized to gain the rights of citizenship. However, there are those who have conveniently argued that children born here become automatic citizens according to the 14th amendment, ignoring what the actual 14th amendment states: "..or naturalized in the United States,”. The definition of "Naturalized" : Naturalization (or naturalisation) is the acquisition of citizenship and nationality by somebody who was not a citizen or national of that country.
There is nothing in the 14th that suggests that children born here of illegal aliens get automatic citizenship. Simply, by the use of the word "Naturalized" it was the intent of the authors of the 14th to separate those who are illegal from those who must become legal aliens, regardless of age. Suggesting that a child born here is automatically legal is untrue. If babies are born here to illegal parents then they too are illegal and must go through that naturalization process.
Why else would the authors have written the phrase "..or naturalized in the United States," without specifying that babies born here are excluded? They too must go through the naturalization process and hospitals or where ever the baby is born should be documented and documentation requirements must show verifiable evidence that parents are citizens for their baby to become a citizen.
Incorrect
I would agree with you if it said persons born and naturalized, however, it clearly says persons born OR naturalized, which means that you can do one thing OR the other, both are not required. Babies who are born in the United States have already fulfilled one of the requirements so the latter is not necessary. It seems to be written in clear english so I do not see how you do not understand that. There is no part of this which speaks of any status based on parental legality.
Anchor Babies
Amendment 14 - Citizenship Rights. Ratified 7/9/1868
1. 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. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Did you get that you idiot," All persons BORN or naturalized in the United States"
Anchor babies don't exist,they exists only in the minds of bigots, perverts, degenerates and back alley shysters, which includes some members of the US Supreme Court, and some so-called university constitutional law professors.
14th amendment
The question on illegal aliens children is they are here in violation of US soverienty and as such are not "subject to US jurisdiction". As such it raises a question of their eligibility.
I could see your point, but
I could see your point, but you must see that the parent is the one violating US soverienty laws, not the child. As soon as the child is born here, he becomes a citizen with the same right that you and I have, he has violated nothing.
Natural born...
What this amendment doesn't address in the definition of citizenship is the meaning of "natural born" in qualifications of President in section two of the Constitution. It does not address the citizenship status of persons born to american citizens abroad. It seems obvious to me that children of armed forces families and diplomatic families, and even of business families or any temporarily expatriate U.S. family are citizens. I can't imagine a returning military family having their children subject to immigration quotas, or needing green cards to work, or being required to apply for citizenship. I think it is also obvious that this citizenship is bestowed on a child where only one parent is a citizen.
Natural born citizen
prior to the 14th amendment, it was understood that any WHITE person born in the united states, even if the parents were WHITE illegal immigrants, was a natural born citizen. The 14th only extended what already applied to white people to all people. Since, literally, the only difference between "citizen" and "natural born citizen" is the ability to serve as President of the United States, and since none of the people writing the 14th ever imagined a black guy getting elected, it probably never occurred to them to deal with the issue.
Bouvier's Law Dictionary, Revised 6th Ed (1856) :
CITIZEN, persons. One who, under the constitution and laws of the United
States, has a right to vote for representatives in congress, and other
public officers, and who is qualified to fill offices in the gift of the
people. In a more extended sense, under the word citizen, are included all
white persons born in the United States, and naturalized persons born out of
the same, who have not lost their right as such. This includes men, women,
and children.
2. Citizens are either native born or naturalized. Native citizens may
fill any office; naturalized citizens may be elected or appointed to any
office under the constitution of the United States, except the office of
president and vice-president. The constitution provides, that "the citizens
of each state shall be entitled to all the privileges and immunities of
citizens in the several states." Art. 4, s. 2.
3. All natives are not citizens of the United States; the descendants
of the aborigines, and those of African origin, are not entitled to the
rights of citizens. Anterior to the adoption of the constitution of the
United States, each state had the right to make citizens of such persons as
it pleased. That constitution does not authorize any but white persons to
become citizens of the United States; and it must therefore be presumed that
no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1
Meigs, R. 331.
4. A citizen of the United States, residing in any state of the Union,
is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183
Metc. & Perk. Dig. h.t.; vide 3 Story's Const. Sec. 1687 Bouv. Inst. Index,
b. t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, Sec. 212;
Poth. Des Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.
Subject to the jurisdiction thereof
Those of you who want to declare undocumented aliens as no "subject to the jurisdiction" of the US need to reconsider your point of view. Children of diplomats, soldiers of invading armies, and (at the time) indians all had one thing in common: they could not be prosecuted for crimes. This is a function of treaties and international law. "Subject to jurisdiction" was not a phrase invented by the writers of the XIV amendment but has a well known and ancient meaning in the law, with which any junior law student will be quite familiar.
Either the children of illegal aliens are "subject to the jurisdiction" of the US and are citizens of the US, or they cannot be prosecuted by the US or by states for crimes. They are either "subject to the jurisdiction" of American law or they are not.
Aside from the effect of defeating the very intent of the XIV Amendment by creating de jure separation of classes of people in the US and causing great harm to a large number of innocent babies, these efforts would also have the effect of releasing from prison a very small but dangerous group of people.
If you do not want to grant citizenship to children of illegal aliens, do you want to grant them immunity from prosecution for crimes? Incidnetally, immunity from civil suits for payment of debt, negligence cases or rent eviction would also appy.
"Subject to the jurisdiction" clause DOES mean something
The way those who chose to ignore this phrase do so by allowing it to apply to children of ambassadors. That is supposed to get rid of the "it must mean SOMETHING or it wouldn't be there" argument. If that was the only exception the writers would not phrase it in such general terms. They could have just said, children of ambassadors excepted. This "ambassadors kids only" ploy is just garbage. Let's try some other examples. What about two spies sworn to a foreign power and sworn to enter the USA and kill our President or blow up the congress. If the wife delivers during the "mission" is that child a citizen? How about members of an invading army? Any children born during the invasion get citizenship?
Remember that this amendment was passed in 1868. The Southern and Northern borders were more or less frontier almost wilderness territory depending on exactly where you crossed. Crossing by boat from Europe or Asia was by no means a trivial pursuit. Even if incidental travellers/tourists were have citizenship awarded to their children (It Was NOT.) it wasn't something that would involve any significant number of people. Also, citizenship in the USA wasn't the prize it is today. Crossing into Montana or Arizona territory might end rather quickly with an arrow in the chest or a tomahawk in the skull.
The fact is the anchor baby interpretation is ANOTHER example of "black English". HUGO BLACK that is. The same man that snuck "separation of church and state" into the USC. It's not there. Neither is the concept of anchor babies. An illegal immigrant is CLEARLY not "subject" to the US. His/her entry is in itself a repudiation of those laws applying to them.
children born in US but not subject to US jurisdiction
Are there any children born here but not subject to US jurisdiction, perhaps children of deploymats?
14th Amendment
Throughout our previous history, immigrants had to have sponsors, a place to live, and a job before they came to this country - thru Ellis Island. They had the specific intent to live, work, and raise their families here. Granting citizenship to their children born here was a natural conclusion, and one which our forefathers clearly foresaw. Now we have illegals crossing the border, some just to have children who would become citizens and be eligible for everything we pay for. Most of them neither wish to become citizens nor stay here. They come here to work and send money back to their home country - just check with any Western Union station or bank - and we end up paying for all their medical expenses, etc. This is just a ploy to get citizenship for a predominantly democratic group of people. It is unfortunate that they are of a specific race or lineage. When the framers of the constitutional amendment passed the 14th, the intent was to allow those slaves who were brought here (they didn't come by themselves illegally) to have full citizenship, which was the right thing to do. I firmly approve of a change to this amendment - and, yes, I am a registered Democrat, but that doesn't mean I don't realize what this is really all about!
Concerning the immigration
Concerning the immigration issue; I wonder if it were white people instead of hispanics pushing into the country would we respond the same way? The question of race is a looming stain when discussing any part of this countrys' history. The question is, can we look past all of our prejudges and do the right thing. Heres a thought; instead of excluding the children of the undocumented, try including the undocumented with the children. also when it comes to "lose the 14th and gain trillions" how about make them citizens, tax them accordingly, and save billions on boarder patrol. it is time that we stood up and did the right thing because its the right thing to do! Whats interesting 'reading through the above article, I find that then it was the prejudges against blacks that was of issue, and now its the hispanics. Whats sad is that you would think we would have learned the first time!
automatic citizenship
Am not a lawyer, but reading the first paragraph of the above, it specifically made a clear cut premise on how to be qualified for citizenship and that is "subject to the jurisdiction thereof...": Illegal immigrants are not subject to the USA but to their country of origin, just at the native Indians in the USA were not, until some amendments later. So am at a lost as to the premise of your conclusion that, ALL BORN HERE HAVE AUTOMATIC CITIZENSHIP!! Even children of legal diplomats are not accorded "citizenship of the USA just because they are born here. Sometimes, we allow personal interest to affect our interpretation of the law and it is sad, because, the law is the law, if there is need to change it, then it should be done the way it should.
Thanks, Alakpa, George PhD.
"and subject to the jurisdiction thereof"
Does this clause mean anything at all? If not, why was written?
the rights
in the 1st amenment it states that we have Freedom of religion, speech, press and assembly; the right to protection the government
if it say freedom of speech and religion dont you think that the rights to homoesexuals would relate to that.
i guess what i am trying to say is homosexuality is like a religion, if gay cupple want to get merryed and have the right to adopt kids they should be able to. if you really think about it if a man and a man get merryed and adopt a new born baby with out a home they are saveing that childs life but because of the laws and every thing a man and a man can only get meried in just a few states and most adoption places dont except homosexuals to adopt.
i think men and women should stand up for there rights and fight for there right merry there soulmate. the definition to meraige is to merry the one you love. there is no where in the definution that says you have to merry to one man one women. not only should they fight for the right to merry they should fight for the right to become apart of the sevice to fight for our country.
ammendments to the constitution
Thank-you, Elizabeth Wydra and the Constitutional Accountability Center for the opportunity to express my opinion.
The words and history of the 14th amendment obviously fail to improve anything if we read the Constitution within the context of organic law, i.e. the Declaration of Independence, the Articles of Confederation and the original Constitution.
The Declaration of Independence implies cognition; "...governments derive their just powers from the consent of the governed." To be a citizen you must be capable of acknowledgement.
In Article 1 Section 2, "...attain the age of 25 and been seven years a citizen..." implies that at the age of 18 people become capable of acknowledgement; they qualify as citizens. (Citizens must be represented in congress by congresspeople who have qualified to be citizens)
The 14th amendment failed to improve and/or correct the constitution. According to Article 6, to be valid, all laws must pursue the Constitution, "..anything to the contrary...notwithstanding."
The rule of law, as enshrined in the US Constitution, is not the same old democracy that migrated out of Europe. The Constitution is a signpost along the bloody path of democracy. It needs to be read and studied so "we the people" can culturally evolve; rights, privileges, votes that count and voices to be heard are guaranteed it its social contract that calls for people to regulate commerce; thereby, securing the blessings of liberty to themselves. A consensus of this political purpose has yet to actualize because the Constitution needs to be clearly understood.
fourteenth amendment....
in all of the powerful liberty,justice,equality arguments that you point out about our ancestors forging of the 14th amendmant i believe that at that point in time our large then sparsly populated newly titled country was in need of a population and as we were all immigrants here at that point it should be obvious what they were trying to achieve.i believe they were just making sure that others who wished to join our country would be entitled to those inaliable rights contained within the freshly inked constitution,but there were then no laws pertaining to illegal entry into our country all were welcomed because they were needed. well now we have an expansive and diverse populous so why still do we honor this amendmant when it is clearly outdated and an open invitation to illegal's to stake a claim in this country on the backs of its current legal tax paying citizens. who do you think bears the cost of that illegals child birthing? post nadal care? well check ups?their insurance,yeah right... who pays for housing and food for them? who.... you and i.... lose the 14th amendment gain trillions of dollars and safer communities.......
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