By Paul Dowling
“This fourteenth amendment which I have offered is simply declaratory of what I regard as the law of the land already, 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. This will not, of course, include persons born in the United States who are foreigners, aliens . . . but will include every other class of persons.” —Senator Jacob Howard, co-author of the Fourteenth Amendment with Senator Lyman Trumbull, explaining what the modifying clause “subject to the jurisdiction of the United States” is supposed to mean, in the Congressional Record of May 30, 1866
The Original Language of the Fourteenth Amendment
Amendment XIV, Section 1, of the Constitution starts with the following sentence: “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.” What this means is that persons born in the United States, who are subject to the jurisdiction of another country, are not American citizens. Babies born to foreign nationals are subject to the jurisdiction of another country—the country their parents hail from—and are, therefore, not US citizens.
The President of the United States is allowed to clarify how the law of the land is to be enforced, by writing an Executive Order to do so. For example, President Trump could write a policy clarification stating that holders of Resident Alien Cards (Green Cards), since they are indeed subject to the jurisdiction of the United States, have the option to file for American citizenship for their children born in the US, if they so choose. The president could also clarify that the same rule does not apply to illegal aliens. And, in absence of any different rule being adopted by the Congress, the president’s Executive Order would hold sway. President Trump would not be creating new law (or even a new interpretation of the law) by doing this; he would merely be recognizing, and restating for policy purposes, what the language of Constitution already says.
Congress Can Overrule an Executive Order to Extend Birthright Citizenship to Illegals
Amendment XIV, Section 5, of the Constitution states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This particular clause means, quite simply, that Congress—in accordance with its plenary power under Article I, Section 8, Clause Four, of the Constitution—may pass laws that delineate the rules for citizenship, without any need for another Constitutional amendment to be passed, in order to modify the Fourteenth Amendment. So, even if there is a dispute as to whether the language of Amendment XIV, Section 1, is clear enough, the Congress does have the right to pass a rule to set matters straight.
The Original Intent of the Fourteenth Amendment Is Well-Known to Constitutionalists
Senator Jacob Howard (who co-authored the Fourteenth Amendment with Senator Lyman Trumbull) explained what the modifying clause “subject to the jurisdiction of the United States” is supposed to mean, in a statement, published for posterity, in the Congressional Record of May 30, 1866 (http://www.14thamendment.us/articles/jacob_howard_on_14th_amendment_1866.gif), where he is on record as having said the following: “I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, 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. This 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, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
Representative John Bingham, of Ohio, often referred to as the Father of the Fourteenth Amendment, issued this statement: “[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, 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 Main Idea
All black slaves, of course, since they were not subject to the jurisdiction of any other country, received American citizenship under the Fourteenth Amendment. Making certain that ex-slaves would be considered citizens in every state of the union was the main reason for writing the first section of the Fourteenth Amendment, in order to guarantee their rights as free citizens. The language was never intended to reward lawbreakers, who entered the country illegally, with US citizenship for their children.
Who Is Paul Dowling?
Paul Dowling is an American patriot who has written a book on the Constitution, explaining the republican values on which it is based and how they protect against the dangers of a strictly majoritarian system of governance: Keeping a Free Republic: Learning the Blueprint for Liberty in the Constitution & the Bill of Rights. (It is on sale at Amazon, for $6.25 in paperback and $0.99 as a Kindle download: https://www.amazon.com/Keeping-Free-Republic-Blueprint-Constitution/dp/1724679082/ref=sr_1_1_twi_pap_2?ie=UTF8&qid=1536890421&sr=8-1&keywords=keeping+a+free+republic.)