Birthright Citizenship??? A Study in Depth
Introduction
There has been a lot of talk recently about birthright citizenship. Some say everyone should be entitled to it. Others say, “Not so fast.” Before we jump into the deep, dark, quagmire of birthright citizenship, let’s take a quick look at this tangled mystery’s history.
The History of the Mystery
As you might be aware, before 1864 our country had slaves, lots of them. And it was perfectly legal in some (mostly southern) states to own them. How, you might ask, did these (mostly southern) states get around the pretty clear declaration (in the Declaration of Independence) that says, “… all men (“man” is from the Old English root word “mann”, which meant “any human being, regardless of gender”) are created equal, that they are endowed by their Creator (by God, nonetheless) with certain unalienable rights (i.e., rights that can’t be surrendered, taken away or sold), that among these are life, liberty (that’s the right we are talking about here),and the right to have fun (I’m paraphrasing).”
Since liberty is clearly stated as a right available to all men (and women), what possible legal construct of the Declaration could allow slavery??? WTF?
Well, some wily southern politicians found a way. Slaves, they said, are not men (or women), they are property. Yes, slaves could walk and talk, add and subtract, and procreate. But they were just property. Mobile, sentient, property.
Fortunately, this all changed. In 1863, the slaves in the areas still in rebellion were freed; in 1864, the slaves in all the southern states were freed; and in December 1865, when the 13th Amendment was ratified, the remaining slaves in Delaware, Missouri and Kentucky were freed (but not given the civil rights of White People).
Why We Needed the 14th Amendment
You would think those wily southern politicians were finally put out of business. But no, they weren’t. You see, the infamous Dred Scott Supreme Court decision which denied slaves almost everything, including citizenship, was still good law, sort of. Former slaves might be free, but those wily southern politicians wanted to make sure they were still denied U.S. citizenship, citizenship in the state they resided (which at the time, this was dearer than U.S. citizenship), the right to serve on juries, the right to own firearms, and most importantly, the right to vote. They created all sorts of roadblocks to African American voting. (I heard that right after the war, some southern states required their citizens to pass a flower spelling test in order to vote. White candidates had to spell “Rose”. Black candidates had to spell “Chrysanthemum”. But I digress.)
What was the country to do? And who could do it? The U.S. Congress had to oversee the job because the President (Andrew Johnson) was drunk all the time. He was also a southerner (well, southern Tennessee), who vetoed the Civil Rights Act of 1866 (the veto was overridden).
So, what did Congress do? Well, they showed they could out-wily even wily southern politicians. They passed the 14th Amendment, which fundamentally reshaped American citizenship! This amendment prohibited states from taking away any American’s civil rights without due process of law, provided equal protection to all Americans, required all states to incorporate the U.S. Bill of Rights into their laws, and permitted Congress, yes, the U.S. Congress, to enforce the amendment’s provisions against the states!
And then, the coup de grace, they made the southern states an offer they couldn’t refuse: RATIFY THIS AMENDMENT OR YOU WILL NEVER BE ALLOWED BACK INTO THE UNION. YOU WILL REMAIN UNDER UNION MILITARY RULE FOREVER😂!! Pretty wily, wouldn’t you say? Congress’s offer was accepted and, in 1868, the 14th Amendment was ratified and became law.
The Nagging Problem
Oh yes, I almost forgot, the 14th Amendment did one other thing. It mandated that all slaves who were born in the United States were citizens of the United States and of the state in which they lived. That means that former slaves had exactly the same kind of citizenship as former slaveholders. Another example of Congress’s superior wiliness.
The 14th Amendment clearly gave citizenship to all slaves (and their children). That’s clear. What’s not clear is whether the amendment gave citizenship to anyone born in the U.S. And the answer is, we’re not sure😮.
The problem is, the 14th Amendment doesn’t say, “All persons born in the United States are citizens of the United States.” It says,” All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” What does “and subject to the jurisdiction thereof” mean? IT MUST MEAN SOMETHING OR THE FOUNDERS WOULDN’T HAVE INCLUDED IT? Does it mean that the children of today’s illegal aliens who are born in the United States U.S. citizens?
To find the answer I went to our country’s highest authority. Google AI says that that “subject to the jurisdiction thereof” means that a person is under the legal authority of the U.S. Well, that clarifies things. In a pig’s eye!
To search for more clarity, I looked at another high authority; a Supreme Court case from 1898. This case held that Wong Kim Ark was a U.S. citizen because he was born here. His parents were here legally but were Chinese nationals (which is probably why Mr. Wong was denied citizenship in the first place). The case also says that non-citizens must follow American laws when on American soil to be considered “subject to the jurisdiction thereof”. This provides some clarity. Those who commit crimes (murder, rape, arson, or dancing without a permit in Washington, D.C. {yup, that’s a crime}) appear NOT to be subject to the jurisdiction thereof. Of course, entering the U.S. illegally is, well, illegal (but a misdemeanor).
The Question and the Result
Is merely committing the misdemeanor of entering the U.S. illegally a big enough crime to prevent an illegal alien’s (or, if you prefer, an undocumented immigrant’s) children born in the U.S. from becoming instant citizens? 🙄? Or not 😉? Should illegals be considered an invading army so that their children will not become U.S. citizens? 🙄? Or not 😉?
Hell, if I know!
I think I brought some clarity to the question, but not enough to provide a clear-cut answer, but don’t go away and hold on to your hats. You won’t have long to wait for absolute clarity because this argument, yes, this very argument, will be coming soon to a Supreme Court near you! 😲 Hopefully, they will provide a clear cut answer!
Respectfully,
but not delusionally, submittted:
Alan R. Bianco
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