By Harold Pease, Ph. D.
President Donald Trump ignited the birthright citizenship issue by an executive order mandating that we return to the Constitution as written by ending the practice. His EO was titled “Protecting the Meaning and Value of American Citizenship.” Consequently 22 Democrat state AG’s sued the Trump Administration (PRESIDENTIAL ACTIONS Executive Order, Jan. 20, 2025). Generally Republicans agree with this action and many Democrats do not. A ruling accepting or rejecting this practice is expected by the Supreme Court any day.
The post Civil War amendments all dealt with what to do with the former slave residents the North had made free against the will of the South; the 11 states once holding them in bondage, and although now free, wanted to keep them as still subservient in citizenship and voting. The 13th Amendment was ratified December 6, 1865, constitutionally ended slavery, the 14th on July 9, 1868) giving their yet unborn citizenship, and the 15th on March 30, 1870 extending the right to vote—together they equalized ex-slaves by law. The amendments must be treated together. None had anything to do with immigration—the word was not mentioned or implied.
Actually, birthright citizenship is prohibited by the 14th Amendment. LibertyUnderFire.org published on Sept. 28, 2010, “Are ‘Anchor’ Babies Constitutional?,” and we have followed with several like columns over the many years. The concept of “anchor” babies refers to those whose parents are illegal immigrants into the United States and while here have a baby. That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship. How can a child of such a parentage have what his parents clearly do not have? Is this practice constitutional? No, and although miss-practiced widely the last several decades, has never been original intent or practice.
For the casual reader the amendment seems to validate such if we omit the middle highlighted six words : “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.” The debate for or against the practice of allowing citizenship for babies of illegal’s born in the U.S. rages on with virtually no expert or otherwise going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.
Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment, (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation. He wrote: “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 [already, as were ex-slaves] 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 [emphasis added], 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 was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I. Those sneaking across our borders in the cover of darkness (under Biden in open daylight) are clearly foreigners and thus specifically excluded from automatic citizenship. Notice the exclusion of babies born of ambassadors while here too.
The early record of Senate deliberations on the 14th Amendment show this to be the view of the Senate. There is no such thing as automatic citizenship from this amendment without serious and unscholarly distortion of it. In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.” Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have automatic citizenship—nor can their babies.
Citizenship was denied Native Americans until 1924 as they owed allegiance to their Sioux or Apache or Blackfoot, or whatever, Indian nations and thus were not yet “subject to the jurisdiction thereof” of the nation they lived within. Certainly one must cease to be at war or conflict with the conquering country. So just being on U.S. soil, even all their life as were they, did not make them citizens automatically until the “jurisdiction thereof” part of the Amendment was satisfied.
Many of our Mexican friends send portions of their paychecks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth from—the U.S. Some vote in Mexican elections from here. It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States—and most admit it. Unfortunately for them the U. S. Constitution specifically denies such citizenship.
Democrat AG’s from 22 states are now taking Trump to court for this “long-standing right.” This is likely to progress to the Supreme Court where it will be defeated if the court holds to original intent as understood and practiced for at least the first hundred years of the amendment’s history. No new amendment is needed to get us back to original intent. Trump’s executive order on this matter is within his authority and enough. Only ignorance, or intent, took us off the Constitution to begin with. It remains the law of the land as written. Only the grossest distortion or intent by those in power and a population grossly ignorant of their founding document could miss this. The president swears by oath to “preserve, protect and defend the Constitution of the United States” which, in this case, he is doing.
Either the Supreme Court follows the 14th Amendment of the U.S. Constitution, or it doesn’t! Justices, if you fail to uphold the Constitution on one of the clearest amendments written, you will lose the confidence of the people that you are fit for your high, Holy and distinguished office.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. Read more of his weekly columns @ www.LibertyUnderFire.org Column #867
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