Are children of illegal aliens born on American soil U.S. citizens? The Constitution says no.
Here is the actual language of the 14th Amendment (emphasis mine throughout):
“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.”
Birthright citizenship only belongs to those who were subject to the jurisdiction of the United States the moment they were born. But children of illegal aliens are not.
Since the parents are not subject to the jurisdiction of the United States, neither are their children. They are, in plain fact, not citizens of the U.S. by birth.
As I frequently say on my radio program, this is not rocket surgery. Illegal aliens by definition are not “subject to the jurisdiction” of the United States. They, like diplomats, are “subject to the jurisdiction” of their homeland. Illegal aliens are called “illegal” aliens for the precise reason that they are not subject to the jurisdiction of the United States, which is why they can be deported once apprehended. Legally and constitutionally, their children are no more “subject to the jurisdiction” of the U.S. than their parents are. If a child’s parents are not American citizens when the child is born, neither is he.
We are all familiar with the concept of “diplomatic immunity,” which diplomats often use to get themselves and their children out of trouble on American soil by claiming that the children are not under the authority of American law. All the American government can do in such circumstances is send them back to their home country. That is, all they can do is deport them.
It’s worthy of note that the word “diplomat” is not in the 14th Amendment. The children of a diplomat are not regarded as citizens by birth because their father is a diplomat, but because he is a citizen of a foreign country. Since the parents are not “subject to the jurisdiction” of the United States, neither are the children.
The logic is inescapable. If the children of foreign diplomats are not U.S. citizens by birth, how is it possible that children of illegal aliens could be?
A key question has to do with the precise meaning of the Jurisdiction Clause in 1868 when the Fourteenth Amendment was ratified. The best tool for answering that question is to look at the Civil Rights Act of 1866, enacted the same year that the Fourteenth Amendment was written by Congress.
The 14th Amendment was intended, in fact, to elevate the provisions of the Civil Rights Act of 1866 to constitutional status and authority and insulate it from legal challenge.
The Civil Rights Act included a provision to secure citizenship for former slaves, to nullify the infamous Dred Scott opinion. The provision read, “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...”
According to the CRA, Indians who were not taxed were not eligible for citizenship. The reason they weren’t taxed by the United States was that they were subject to the “foreign power” of the sovereign Indian nations to which they belonged.
As Ken Kuklowski puts it, “The Fourteenth Amendment only commands citizenship to persons born on U.S. soil to parents who are not citizens of a foreign country...”
Rep. John Bingham of Ohio, considered the father of the 14th Amendment, explained the language of the amendment this way: “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 “Jurisdiction” clause was added to the 14th Amendment only after a lengthy debate. According to NumbersUSA, Sen. Jacob Howard of Michigan proposed the amendment because he wanted to make it clear that the simple accident of birth on U.S. soil was not in fact enough to confer citizenship.
Sen. Howard said the jurisdiction requirement is “simply declaratory of what I regard as the law of the land already,” an apparent reference to the Civil Rights Act of 1866.
In his debate, Sen. Howard said, "[T]his will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States...”
Here is a great question: if everybody understood that citizenship was granted by birth alone, why did it take an act of Congress in 1922 - 54 years after the ratification of the 14th Amendment - to grant citizenship to American Indians, every one of whom had been born on American soil?
Since 1795, aliens have been required to renounce allegiance to any foreign power and declare allegiance to the U.S. Constitution to become a naturalized citizen. Such allegiance was never assumed for aliens who were born here or migrated here. We have a framed copy of my great-grandfather’s renunciation of his allegiance to the Czar of Russia as a family heirloom. That renunciation was a prerequisite to his being granted full citizenship in the United States.
The way forward is simple. Section 5 of the 14th Amendment gives power to Congress to “enforce, by appropriate legislation, the provisions of this article.”
Some well-meaning Republican candidates are calling for an amendment to the Constitution to ban birthright citizenship. But in truth, the Constitution does NOT need to be amended. It only needs to be applied.
Bottom line: Are children of illegal aliens American citizens? No. Why? Because the Constitution says they aren’t.