The 14th Amendment to the U.S. Constitution reads:  “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.”

 

Seems simple enough.  Most Americans, upon reading this amendment, no doubt assume that it implies “birthright citizenship,” the tradition we’ve had that simply being born in this country automatically makes one a citizen, case closed.  Most of us don’t know the larger historical context and reasoning associated with its creation and also wrongly assume that most other nations deal with citizenship in just this way.  President Trump’s readiness to look at the issue of birthright citizenship in light of its flagrant abuse is a good thing –- it is not about race –- and we should examine it ourselves with the help of some of our favorite legal minds, who turn out to be of very similar mindset here.


Commentary continues below advertisement


This affects the status of about 300,000 children born here every year.  Before we get started, it seems to me that there are actually two questions before us.  First, was the amendment really intended to cover everyone who is born here, under every circumstance, as it’s being interpreted in practice today?  And, second, if it’s being wrongly interpreted, is it advisable for President Trump to correct this by executive order so that people here illegally and those who come here just to give birth cannot get citizenship for their children this way?

 

Fortunately, the 14th Amendment has quite a rich backstory, coming as it did in the days of Reconstruction after the Civil War, when the question was, “How do we make citizens of former slaves?”  To greatly condense this history lesson, the 13th Amendment freed the slaves; the 14th Amendment made them U.S. citizens.  Little did legislators in the 1860s think that in another century and a half, just because of the 14th Amendment, pregnant Chinese and Russian women would be hopping planes to come to America and have their babies here, just for the birth certificate.  (Especially the part about the planes, but I digress.)  It seems obvious that they’d be saying, “No, no!  That’s not what we meant at all!”

 

So, was the amendment intended to grant citizenship to all who are fortunate enough to be born here?  The one little part that’s open to interpretation is the phrase “and subject to the jurisdiction thereof.”  Law professor John Eastman said in a New York Times op-ed in 2015 that this phrase was understood at the time of adoption to mean “not owing allegiance to any other sovereign.”  Former slaves had lived their entire lives in America and did not owe allegiance to another nation.  To cite a modern example, if the child of an American couple is born in France, the baby is still an American citizen.  Conversely, a child born in America to foreign diplomats is not an American citizen.


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Would modern courts interpret the word “jurisdiction” the way the originators of the amendment intended?  As Andrew C. McCarthy says in NATIONAL REVIEW, the context now is so different and the issue of immigration so politicized that it’s easy to imagine the courts taking a whole different route with the term “jurisdiction.”  (Note:  this is why it’s so important to have constructionist judges.)  But even assuming that the amendment wasn’t intended to grant birthright citizenship, is our practice of granting it merely an “executive policy” that the President has the power to change by executive order?  McCarthy says he doesn’t think so.

 

The problem is, in 1952, Congress enacted a statute, Section 1401 of the immigration and naturalization code (Title 8, U.S. Code), that codifies the amendment, using that same word, “jurisdiction.”  Thus, the courts of today could choose to focus more on what the word meant in 1952.  And why did Congress even pass this law, given that they didn’t need to because there was already a constitutional amendment stating the same thing?  McCarthy sees it as “a strong expression of Congress’ intent to exercise its constitutional authority to set the terms of citizenship.”   And if Congress thought that its law was inconsistent with the practice of conferring birthright citizenship, it could have amended the law at some point, but it never has.

 

The President can always go ahead and interpret “jurisdiction” the way he wants and wait for the chance that Congress or the courts would say otherwise.  His lawyers may have advised him as much.  But McCarthy believes that “the President may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.”  We’ve seen how the courts have reacted to other things Trump has tried to do.  If he attempts this by executive order, we know that it will trigger an immediate injunction.  McCarthy agrees that the current understanding of birthright citizenship needs changing but says that to get through the courts, it must be done legislatively, and even then he gives it “a less than 50-50 chance.”

 

https://www.nationalreview.com/corner/donald-trump-end-birthright-citizenship-by-executive-order/

 

Legal expert Jonathan Turley, in a piece for USA TODAY, notes that there are good-faith arguments on both sides of the birthright citizenship issue, and he looks forward to a clarification --- “a final and clear resolution.”  Again, it comes down to the phrase “and subject to the jurisdiction thereof.”  It would seem this means that the amendment applies only to citizens and legal residents who are subject fully to the legal jurisdiction of the United States.

 

But when the amendment was first being debated on the floor of the Senate, there was considerable talk about what “jurisdiction” meant.  There are three possibilities; Turley’s article goes into detail.

 

Liberals are bringing up a case from 1898, The United States vs. Wong Kim Ark, in which the Supreme Court ruled 6-2 that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory...including all children here born of resident aliens.”  But the parents in that case were legal residents, who clearly were “subject to the jurisdiction” of the United States.  We’re talking about something else:  people here illegally or “tourists” here just long enough to give birth and collect the paperwork.

 

Turley points out that most countries, including our European allies, do not have birthright citizenship.  The most common rule is “right of blood,” not “right of the soil.”

 

As to whether or not an executive order from Trump is the best way to ignite some change, Turley agrees with McCarthy that with something this important, it would be better for Congress to do it.  “The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix,” he says.  On the other hand, it would finally force the courts to clarify what it means to be a citizen of our country –- something of tremendous importance.

 

https://www.usatoday.com/story/opinion/2018/10/30/donald-trump-birthright-citizenship-executive-order-court-14th-amendment-column/1818609002/

 

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Comments 51-65 of 65

  • Harold Levi

    10/31/2018 03:32 PM

    The 14th amendment was retaliation for the seceding states and those who fought in the war of northern aggression. The first section was written to enforce making African slaves full citizens. It was written in a very forceful manner. In other words, the south should open wide because the Africans are going to rammed down their throat. There was absolutely NO concern about immigrants or their children back then, only HATE for the south.

    This is one of several passages in the Constitution that is regularly misinterpreted by Politicians to suit their agenda.

    Please support the Convention of States organization who is trying very hard to get an Article V Convention of States called.

    Deo Vindice,
    Harold Levi

    from the North Georgia Mountains

  • Lynn O Jonsd

    10/31/2018 02:57 PM

    We know for a fact that Mexicans in Tijuana, MX came across to San Diego, CA to have their baby so it would bean American and get all the benefits..that we then have to pay for which isn't fair at all.
    Pray something gets changed.

  • Cecilia Sotomayor

    10/31/2018 02:47 PM

    The term jurisdiction would imply that the USA has a right to take action regarding a person, which means the illegals would fall into that criteria. The issue that needs to be resolved by amendment to the constitution of "born or naturalized in the United States from citizens or naturalized persons" are citizens of the United States.

  • Debbie Graham

    10/31/2018 02:36 PM

    I just love how you explain things that my non-political, non-government brain can understand. I am all for legal citizenship if you
    are here legally. If you are from Honduras and have a baby here, that baby is still a Honduras baby, NOT an American citizen.....Makes sense to me!!

  • John Henry Jones

    10/31/2018 02:34 PM

    Mike I think that President Trump should start with the executive order. I know that some liberal judge will do whatever he must do to stop it, then we can take it to the conservative Supreme Court and let them tell us what is right. There is no other country in the world that has birth right citizenship and I for one don't think that the congressional members who adopted the 14 Amendment would agree with what these people are trying to do. If they knew that a person would be able to determine within one or two days when a baby would be born and that they could fly all the way around the world in less than a day to get their feet on American soil so that they can get their kid a citizenship in the USA thereby giving them permanent access to the USA, they never would have made the 14 Amendment! It's time that we STAND UP FOR OUR COUNTRY AND STOP THIS BIRTHRIGHT CITIZENSHIP!!!!

  • Hugh Hudson

    10/31/2018 02:31 PM

    Dear Governor:

    I agree with Andrew McCarthy. A constructionist view of what the 14th Amendment says must be maintained. The phrase "subject to the jurisdiction thereof.." is critical. It is a question of citizen loyalty. Where is the loyalty when foreign born mothers retreat to their homelands with their American born babies. I can find none. I find birthright citizenship to be insane. So, clearly one of the duties of citizens is to be loyal to their country of birth.

    In a related citizenship matter, Vattel, in his "Law of Nations, chapter 19, par. 212, says "The natives, or natural-born citizens, are those born in the country, of parents who are citizens". According to Vattel, whom the Founders relied upon, Obama, whose Kenyan born father never naturalized to the US, is not even a natural born citizen.

    The Latin quote on Governor William Bradford's grave says: “Do not basely relinquish what the Fathers with difficulty attained.”

    It is all about loyalty!

    Thanks,
    Hugh
    Frankfort, Kentucky

  • Tom Williams

    10/31/2018 02:26 PM

    10/31/2018

    Mr. Huckabee:
    I do not support the use of a Presidential Executive order to resolve a constitutional issue. The issue of citizenship is an extremely important constitutional issue and not one the executive branch should decide. Moreover any change at this time will prove controversial and disruptive, so it will need a period of review, education of the public, and some public response either directly through referendum or most preferred, by our two houses of Congress.

    However, I don't see why the President shouldn't ask the Supreme Court for guidance on interpretation. It's possible that the Court could decide that "fly-ins" or those who manipulate the system should go through a normal citizenship process until the legislative branch has a chance to review and act.

    Faithfully,

    Tom Williams

  • Taylor E. Hoynes, Jr.

    10/31/2018 02:16 PM

    Mike, thank you for all you do for God & Country and Christianity. I addressed this issue in an essay “Birth Citizenship (Anchor Babies) Controversy & The 14th Amendment”. We must look at the intent of the 14th Amendment which was a clarification of the 13th banning slavery and freeing them as citizens. The 14th Amendment NEVER Authorized “Birth Citizenship (Anchor Babies) and never intended it to allow that. One of the authors of the 14th amendment was United States Senator Jacob Merritt Howard and he personally added the comment “and subject to the jurisdiction thereof”. We find the background, dialog and intent in the United States Congressional Globe, Senate, 39th Congress, 1st Session page 2890 WEDNESDAY May 30, 1866 IN SENATE. (Page 2887); Mr. HOWARD. "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."
    I cover more detail in my essay if you wish to read further. Thank you and God Bless, Taylor
    READ INTENT BY THE AUTHORS+RULE OF LAW & CONSTITUTION CLICK HERE TO READ Essay & Quotes
    http://www.colonialpublishingco.com/patriots-special/


  • Karen McKee

    10/31/2018 02:16 PM

    My concern is for right now. I want to know HOW sending our troups to the border is going to protect us if they aren't allowed to put their hands on these INVADERS heading toward our border? Is this not considered an act of war? My fear is that they WILL successfully get thru our border. Some of these invaders are ARMED! Our border patrol is vastly unequipeded & sparsely manned to deal with this threat; it IS a THREAT! Something needs to happen NOW!

  • ROBERT MCFATE

    10/31/2018 02:06 PM

    Congress seems to not want to do anything on immigration so just maybe Trump is trying to light a fire under them with an executive order. Seems that there are a lot of things in the Constitution that have been change by passing bill without going through the Constitutional proceeder of Amendment, like all the agency and department that cannot be found anywhere in the Constitution or turn over the authority to make laws and regulations without congress. Our government has destroyed much of the Constitution by delegation of power to everyone but themselves cause if they use their powers few would last for more than one or two election!

  • Francis Dryden

    10/31/2018 02:03 PM

    My wife was born in Manchester, England in 1949. Her parents were Ukrainians that had been German prisoners (her mother in farm labor and her father in a prison camp... they did not know each other at that time). As they were both liberated in what became West Germany, they were advised (as all were) NOT to go back to the Ukraine and they were transported to England were they met, married and had my wife. I would believe they were legal immigrants (or at least refugees) and worked in England (her mother did janitorial work in a hospital and her father worked in coal mines). When my wife was about 1 and ½ years old, her parents immigrated to Canada where after a period of time became Canadian citizens. My wife and I went to England a few years back and her birth certificate was all that she needed! The jurisdiction article makes this all very interesting to me and especially so as my wife and I are now living in Mexico both as permanent immigrants... we are now eligible to become Mexican citizens... my side is very clear in that I am a 17th generation Canadian buy my wife's nationality seems to be very foggy to say the least.

    The word "jurisdiction" is used heavily in Masonic constitutions and in that many signers of the US Constitution were Masons if there are any clues there... I shall research more... The plot thickens.

  • Sandra R. Padilla

    10/31/2018 02:01 PM

    Good afternoon governor,

    I live in Nicaragua and many people fly into the USA to have babies so they can be american citizens and then go to college with scholarships. I have seen many friends who in the decade of the 80s became residents of the USA, then moved back to Nicaragua lived here and 20 years later became US citizens without living in the USA during the years before. There is so much corruption in the legal system in Miami and I imagine also in San Francisco, LA and other ports of entry. I know people with Medicare who never have paid money into the system but through chain migration they became US citizens and get all of the benefits that tax paying americans get.The average american does not know this and the left takes advantages to move their agenda thru. Thanks for writting your newletter, i enjoy reading it everyday. Sincerely, Sandra R. Padilla

  • Kathleen Jenson

    10/31/2018 01:46 PM

    It seems to me that under the juristiction is clear. If you are not under the juristiction of the usa and you have a baby, the baby is not under the juristinction either. if it were true, can any non citizen be drafted? parent or child? can any non citizen say he is not responsible for following our laws since he is an actual citizen somewhere else and follows their laws? It seems to me anyone claiming to be a citizen should have refused the right of citizenship from wherever they came from and have sworn to protect, defend and obey our constitution. No excuses for anyone subscribing to any ideology that is antithetical to that paramount of freedom.

  • Stephen Russell

    10/31/2018 01:43 PM

    Birthright: Proof of persecution at home?? skills, kin already in system or legal.
    I say speed upLegal Immigration alone, speed this & move those UP in the process now.
    CUT time from 2 yrs to 1 yr 6 mos IF have IN DEMAND skills

  • Melody Mercer

    10/31/2018 01:19 PM

    It seems to me we need to proceed carefully because in 20 years how many people will be able to say “I was born in the USA but was not allowed to be a citizen”.
    This could be big trouble!

The 14th Amendment to the U.S. Constitution reads:  “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.”

 

Seems simple enough.  Most Americans, upon reading this amendment, no doubt assume that it implies “birthright citizenship,” the tradition we’ve had that simply being born in this country automatically makes one a citizen, case closed.  Most of us don’t know the larger historical context and reasoning associated with its creation and also wrongly assume that most other nations deal with citizenship in just this way.  President Trump’s readiness to look at the issue of birthright citizenship in light of its flagrant abuse is a good thing –- it is not about race –- and we should examine it ourselves with the help of some of our favorite legal minds, who turn out to be of very similar mindset here.


Commentary continues below advertisement


This affects the status of about 300,000 children born here every year.  Before we get started, it seems to me that there are actually two questions before us.  First, was the amendment really intended to cover everyone who is born here, under every circumstance, as it’s being interpreted in practice today?  And, second, if it’s being wrongly interpreted, is it advisable for President Trump to correct this by executive order so that people here illegally and those who come here just to give birth cannot get citizenship for their children this way?

 

Fortunately, the 14th Amendment has quite a rich backstory, coming as it did in the days of Reconstruction after the Civil War, when the question was, “How do we make citizens of former slaves?”  To greatly condense this history lesson, the 13th Amendment freed the slaves; the 14th Amendment made them U.S. citizens.  Little did legislators in the 1860s think that in another century and a half, just because of the 14th Amendment, pregnant Chinese and Russian women would be hopping planes to come to America and have their babies here, just for the birth certificate.  (Especially the part about the planes, but I digress.)  It seems obvious that they’d be saying, “No, no!  That’s not what we meant at all!”

 

So, was the amendment intended to grant citizenship to all who are fortunate enough to be born here?  The one little part that’s open to interpretation is the phrase “and subject to the jurisdiction thereof.”  Law professor John Eastman said in a New York Times op-ed in 2015 that this phrase was understood at the time of adoption to mean “not owing allegiance to any other sovereign.”  Former slaves had lived their entire lives in America and did not owe allegiance to another nation.  To cite a modern example, if the child of an American couple is born in France, the baby is still an American citizen.  Conversely, a child born in America to foreign diplomats is not an American citizen.


ARE YOU VOTING IN THE MIDTERM ELECTIONS? LET ME KNOW HERE>>>

1,000,000 IDENTIFIED VOTERS GOAL!  RESPOND TODAY!


Would modern courts interpret the word “jurisdiction” the way the originators of the amendment intended?  As Andrew C. McCarthy says in NATIONAL REVIEW, the context now is so different and the issue of immigration so politicized that it’s easy to imagine the courts taking a whole different route with the term “jurisdiction.”  (Note:  this is why it’s so important to have constructionist judges.)  But even assuming that the amendment wasn’t intended to grant birthright citizenship, is our practice of granting it merely an “executive policy” that the President has the power to change by executive order?  McCarthy says he doesn’t think so.

 

The problem is, in 1952, Congress enacted a statute, Section 1401 of the immigration and naturalization code (Title 8, U.S. Code), that codifies the amendment, using that same word, “jurisdiction.”  Thus, the courts of today could choose to focus more on what the word meant in 1952.  And why did Congress even pass this law, given that they didn’t need to because there was already a constitutional amendment stating the same thing?  McCarthy sees it as “a strong expression of Congress’ intent to exercise its constitutional authority to set the terms of citizenship.”   And if Congress thought that its law was inconsistent with the practice of conferring birthright citizenship, it could have amended the law at some point, but it never has.

 

The President can always go ahead and interpret “jurisdiction” the way he wants and wait for the chance that Congress or the courts would say otherwise.  His lawyers may have advised him as much.  But McCarthy believes that “the President may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.”  We’ve seen how the courts have reacted to other things Trump has tried to do.  If he attempts this by executive order, we know that it will trigger an immediate injunction.  McCarthy agrees that the current understanding of birthright citizenship needs changing but says that to get through the courts, it must be done legislatively, and even then he gives it “a less than 50-50 chance.”

 

https://www.nationalreview.com/corner/donald-trump-end-birthright-citizenship-by-executive-order/

 

Legal expert Jonathan Turley, in a piece for USA TODAY, notes that there are good-faith arguments on both sides of the birthright citizenship issue, and he looks forward to a clarification --- “a final and clear resolution.”  Again, it comes down to the phrase “and subject to the jurisdiction thereof.”  It would seem this means that the amendment applies only to citizens and legal residents who are subject fully to the legal jurisdiction of the United States.

 

But when the amendment was first being debated on the floor of the Senate, there was considerable talk about what “jurisdiction” meant.  There are three possibilities; Turley’s article goes into detail.

 

Liberals are bringing up a case from 1898, The United States vs. Wong Kim Ark, in which the Supreme Court ruled 6-2 that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory...including all children here born of resident aliens.”  But the parents in that case were legal residents, who clearly were “subject to the jurisdiction” of the United States.  We’re talking about something else:  people here illegally or “tourists” here just long enough to give birth and collect the paperwork.

 

Turley points out that most countries, including our European allies, do not have birthright citizenship.  The most common rule is “right of blood,” not “right of the soil.”

 

As to whether or not an executive order from Trump is the best way to ignite some change, Turley agrees with McCarthy that with something this important, it would be better for Congress to do it.  “The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix,” he says.  On the other hand, it would finally force the courts to clarify what it means to be a citizen of our country –- something of tremendous importance.

 

https://www.usatoday.com/story/opinion/2018/10/30/donald-trump-birthright-citizenship-executive-order-court-14th-amendment-column/1818609002/

 

 LEAVE ME A COMMENT BY CLICKING HERE.  I READ THEM!

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Comments 51-65 of 65

  • Harold Levi

    10/31/2018 03:32 PM

    The 14th amendment was retaliation for the seceding states and those who fought in the war of northern aggression. The first section was written to enforce making African slaves full citizens. It was written in a very forceful manner. In other words, the south should open wide because the Africans are going to rammed down their throat. There was absolutely NO concern about immigrants or their children back then, only HATE for the south.

    This is one of several passages in the Constitution that is regularly misinterpreted by Politicians to suit their agenda.

    Please support the Convention of States organization who is trying very hard to get an Article V Convention of States called.

    Deo Vindice,
    Harold Levi

    from the North Georgia Mountains

  • Lynn O Jonsd

    10/31/2018 02:57 PM

    We know for a fact that Mexicans in Tijuana, MX came across to San Diego, CA to have their baby so it would bean American and get all the benefits..that we then have to pay for which isn't fair at all.
    Pray something gets changed.

  • Cecilia Sotomayor

    10/31/2018 02:47 PM

    The term jurisdiction would imply that the USA has a right to take action regarding a person, which means the illegals would fall into that criteria. The issue that needs to be resolved by amendment to the constitution of "born or naturalized in the United States from citizens or naturalized persons" are citizens of the United States.

  • Debbie Graham

    10/31/2018 02:36 PM

    I just love how you explain things that my non-political, non-government brain can understand. I am all for legal citizenship if you
    are here legally. If you are from Honduras and have a baby here, that baby is still a Honduras baby, NOT an American citizen.....Makes sense to me!!

  • John Henry Jones

    10/31/2018 02:34 PM

    Mike I think that President Trump should start with the executive order. I know that some liberal judge will do whatever he must do to stop it, then we can take it to the conservative Supreme Court and let them tell us what is right. There is no other country in the world that has birth right citizenship and I for one don't think that the congressional members who adopted the 14 Amendment would agree with what these people are trying to do. If they knew that a person would be able to determine within one or two days when a baby would be born and that they could fly all the way around the world in less than a day to get their feet on American soil so that they can get their kid a citizenship in the USA thereby giving them permanent access to the USA, they never would have made the 14 Amendment! It's time that we STAND UP FOR OUR COUNTRY AND STOP THIS BIRTHRIGHT CITIZENSHIP!!!!

  • Hugh Hudson

    10/31/2018 02:31 PM

    Dear Governor:

    I agree with Andrew McCarthy. A constructionist view of what the 14th Amendment says must be maintained. The phrase "subject to the jurisdiction thereof.." is critical. It is a question of citizen loyalty. Where is the loyalty when foreign born mothers retreat to their homelands with their American born babies. I can find none. I find birthright citizenship to be insane. So, clearly one of the duties of citizens is to be loyal to their country of birth.

    In a related citizenship matter, Vattel, in his "Law of Nations, chapter 19, par. 212, says "The natives, or natural-born citizens, are those born in the country, of parents who are citizens". According to Vattel, whom the Founders relied upon, Obama, whose Kenyan born father never naturalized to the US, is not even a natural born citizen.

    The Latin quote on Governor William Bradford's grave says: “Do not basely relinquish what the Fathers with difficulty attained.”

    It is all about loyalty!

    Thanks,
    Hugh
    Frankfort, Kentucky

  • Tom Williams

    10/31/2018 02:26 PM

    10/31/2018

    Mr. Huckabee:
    I do not support the use of a Presidential Executive order to resolve a constitutional issue. The issue of citizenship is an extremely important constitutional issue and not one the executive branch should decide. Moreover any change at this time will prove controversial and disruptive, so it will need a period of review, education of the public, and some public response either directly through referendum or most preferred, by our two houses of Congress.

    However, I don't see why the President shouldn't ask the Supreme Court for guidance on interpretation. It's possible that the Court could decide that "fly-ins" or those who manipulate the system should go through a normal citizenship process until the legislative branch has a chance to review and act.

    Faithfully,

    Tom Williams

  • Taylor E. Hoynes, Jr.

    10/31/2018 02:16 PM

    Mike, thank you for all you do for God & Country and Christianity. I addressed this issue in an essay “Birth Citizenship (Anchor Babies) Controversy & The 14th Amendment”. We must look at the intent of the 14th Amendment which was a clarification of the 13th banning slavery and freeing them as citizens. The 14th Amendment NEVER Authorized “Birth Citizenship (Anchor Babies) and never intended it to allow that. One of the authors of the 14th amendment was United States Senator Jacob Merritt Howard and he personally added the comment “and subject to the jurisdiction thereof”. We find the background, dialog and intent in the United States Congressional Globe, Senate, 39th Congress, 1st Session page 2890 WEDNESDAY May 30, 1866 IN SENATE. (Page 2887); Mr. HOWARD. "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."
    I cover more detail in my essay if you wish to read further. Thank you and God Bless, Taylor
    READ INTENT BY THE AUTHORS+RULE OF LAW & CONSTITUTION CLICK HERE TO READ Essay & Quotes
    http://www.colonialpublishingco.com/patriots-special/


  • Karen McKee

    10/31/2018 02:16 PM

    My concern is for right now. I want to know HOW sending our troups to the border is going to protect us if they aren't allowed to put their hands on these INVADERS heading toward our border? Is this not considered an act of war? My fear is that they WILL successfully get thru our border. Some of these invaders are ARMED! Our border patrol is vastly unequipeded & sparsely manned to deal with this threat; it IS a THREAT! Something needs to happen NOW!

  • ROBERT MCFATE

    10/31/2018 02:06 PM

    Congress seems to not want to do anything on immigration so just maybe Trump is trying to light a fire under them with an executive order. Seems that there are a lot of things in the Constitution that have been change by passing bill without going through the Constitutional proceeder of Amendment, like all the agency and department that cannot be found anywhere in the Constitution or turn over the authority to make laws and regulations without congress. Our government has destroyed much of the Constitution by delegation of power to everyone but themselves cause if they use their powers few would last for more than one or two election!

  • Francis Dryden

    10/31/2018 02:03 PM

    My wife was born in Manchester, England in 1949. Her parents were Ukrainians that had been German prisoners (her mother in farm labor and her father in a prison camp... they did not know each other at that time). As they were both liberated in what became West Germany, they were advised (as all were) NOT to go back to the Ukraine and they were transported to England were they met, married and had my wife. I would believe they were legal immigrants (or at least refugees) and worked in England (her mother did janitorial work in a hospital and her father worked in coal mines). When my wife was about 1 and ½ years old, her parents immigrated to Canada where after a period of time became Canadian citizens. My wife and I went to England a few years back and her birth certificate was all that she needed! The jurisdiction article makes this all very interesting to me and especially so as my wife and I are now living in Mexico both as permanent immigrants... we are now eligible to become Mexican citizens... my side is very clear in that I am a 17th generation Canadian buy my wife's nationality seems to be very foggy to say the least.

    The word "jurisdiction" is used heavily in Masonic constitutions and in that many signers of the US Constitution were Masons if there are any clues there... I shall research more... The plot thickens.

  • Sandra R. Padilla

    10/31/2018 02:01 PM

    Good afternoon governor,

    I live in Nicaragua and many people fly into the USA to have babies so they can be american citizens and then go to college with scholarships. I have seen many friends who in the decade of the 80s became residents of the USA, then moved back to Nicaragua lived here and 20 years later became US citizens without living in the USA during the years before. There is so much corruption in the legal system in Miami and I imagine also in San Francisco, LA and other ports of entry. I know people with Medicare who never have paid money into the system but through chain migration they became US citizens and get all of the benefits that tax paying americans get.The average american does not know this and the left takes advantages to move their agenda thru. Thanks for writting your newletter, i enjoy reading it everyday. Sincerely, Sandra R. Padilla

  • Kathleen Jenson

    10/31/2018 01:46 PM

    It seems to me that under the juristiction is clear. If you are not under the juristiction of the usa and you have a baby, the baby is not under the juristinction either. if it were true, can any non citizen be drafted? parent or child? can any non citizen say he is not responsible for following our laws since he is an actual citizen somewhere else and follows their laws? It seems to me anyone claiming to be a citizen should have refused the right of citizenship from wherever they came from and have sworn to protect, defend and obey our constitution. No excuses for anyone subscribing to any ideology that is antithetical to that paramount of freedom.

  • Stephen Russell

    10/31/2018 01:43 PM

    Birthright: Proof of persecution at home?? skills, kin already in system or legal.
    I say speed upLegal Immigration alone, speed this & move those UP in the process now.
    CUT time from 2 yrs to 1 yr 6 mos IF have IN DEMAND skills

  • Melody Mercer

    10/31/2018 01:19 PM

    It seems to me we need to proceed carefully because in 20 years how many people will be able to say “I was born in the USA but was not allowed to be a citizen”.
    This could be big trouble!

The 14th Amendment to the U.S. Constitution reads:  “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.”

 

Seems simple enough.  Most Americans, upon reading this amendment, no doubt assume that it implies “birthright citizenship,” the tradition we’ve had that simply being born in this country automatically makes one a citizen, case closed.  Most of us don’t know the larger historical context and reasoning associated with its creation and also wrongly assume that most other nations deal with citizenship in just this way.  President Trump’s readiness to look at the issue of birthright citizenship in light of its flagrant abuse is a good thing –- it is not about race –- and we should examine it ourselves with the help of some of our favorite legal minds, who turn out to be of very similar mindset here.


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This affects the status of about 300,000 children born here every year.  Before we get started, it seems to me that there are actually two questions before us.  First, was the amendment really intended to cover everyone who is born here, under every circumstance, as it’s being interpreted in practice today?  And, second, if it’s being wrongly interpreted, is it advisable for President Trump to correct this by executive order so that people here illegally and those who come here just to give birth cannot get citizenship for their children this way?

 

Fortunately, the 14th Amendment has quite a rich backstory, coming as it did in the days of Reconstruction after the Civil War, when the question was, “How do we make citizens of former slaves?”  To greatly condense this history lesson, the 13th Amendment freed the slaves; the 14th Amendment made them U.S. citizens.  Little did legislators in the 1860s think that in another century and a half, just because of the 14th Amendment, pregnant Chinese and Russian women would be hopping planes to come to America and have their babies here, just for the birth certificate.  (Especially the part about the planes, but I digress.)  It seems obvious that they’d be saying, “No, no!  That’s not what we meant at all!”

 

So, was the amendment intended to grant citizenship to all who are fortunate enough to be born here?  The one little part that’s open to interpretation is the phrase “and subject to the jurisdiction thereof.”  Law professor John Eastman said in a New York Times op-ed in 2015 that this phrase was understood at the time of adoption to mean “not owing allegiance to any other sovereign.”  Former slaves had lived their entire lives in America and did not owe allegiance to another nation.  To cite a modern example, if the child of an American couple is born in France, the baby is still an American citizen.  Conversely, a child born in America to foreign diplomats is not an American citizen.


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Would modern courts interpret the word “jurisdiction” the way the originators of the amendment intended?  As Andrew C. McCarthy says in NATIONAL REVIEW, the context now is so different and the issue of immigration so politicized that it’s easy to imagine the courts taking a whole different route with the term “jurisdiction.”  (Note:  this is why it’s so important to have constructionist judges.)  But even assuming that the amendment wasn’t intended to grant birthright citizenship, is our practice of granting it merely an “executive policy” that the President has the power to change by executive order?  McCarthy says he doesn’t think so.

 

The problem is, in 1952, Congress enacted a statute, Section 1401 of the immigration and naturalization code (Title 8, U.S. Code), that codifies the amendment, using that same word, “jurisdiction.”  Thus, the courts of today could choose to focus more on what the word meant in 1952.  And why did Congress even pass this law, given that they didn’t need to because there was already a constitutional amendment stating the same thing?  McCarthy sees it as “a strong expression of Congress’ intent to exercise its constitutional authority to set the terms of citizenship.”   And if Congress thought that its law was inconsistent with the practice of conferring birthright citizenship, it could have amended the law at some point, but it never has.

 

The President can always go ahead and interpret “jurisdiction” the way he wants and wait for the chance that Congress or the courts would say otherwise.  His lawyers may have advised him as much.  But McCarthy believes that “the President may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.”  We’ve seen how the courts have reacted to other things Trump has tried to do.  If he attempts this by executive order, we know that it will trigger an immediate injunction.  McCarthy agrees that the current understanding of birthright citizenship needs changing but says that to get through the courts, it must be done legislatively, and even then he gives it “a less than 50-50 chance.”

 

https://www.nationalreview.com/corner/donald-trump-end-birthright-citizenship-by-executive-order/

 

Legal expert Jonathan Turley, in a piece for USA TODAY, notes that there are good-faith arguments on both sides of the birthright citizenship issue, and he looks forward to a clarification --- “a final and clear resolution.”  Again, it comes down to the phrase “and subject to the jurisdiction thereof.”  It would seem this means that the amendment applies only to citizens and legal residents who are subject fully to the legal jurisdiction of the United States.

 

But when the amendment was first being debated on the floor of the Senate, there was considerable talk about what “jurisdiction” meant.  There are three possibilities; Turley’s article goes into detail.

 

Liberals are bringing up a case from 1898, The United States vs. Wong Kim Ark, in which the Supreme Court ruled 6-2 that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory...including all children here born of resident aliens.”  But the parents in that case were legal residents, who clearly were “subject to the jurisdiction” of the United States.  We’re talking about something else:  people here illegally or “tourists” here just long enough to give birth and collect the paperwork.

 

Turley points out that most countries, including our European allies, do not have birthright citizenship.  The most common rule is “right of blood,” not “right of the soil.”

 

As to whether or not an executive order from Trump is the best way to ignite some change, Turley agrees with McCarthy that with something this important, it would be better for Congress to do it.  “The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix,” he says.  On the other hand, it would finally force the courts to clarify what it means to be a citizen of our country –- something of tremendous importance.

 

https://www.usatoday.com/story/opinion/2018/10/30/donald-trump-birthright-citizenship-executive-order-court-14th-amendment-column/1818609002/

 

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Comments 51-65 of 65

  • Harold Levi

    10/31/2018 03:32 PM

    The 14th amendment was retaliation for the seceding states and those who fought in the war of northern aggression. The first section was written to enforce making African slaves full citizens. It was written in a very forceful manner. In other words, the south should open wide because the Africans are going to rammed down their throat. There was absolutely NO concern about immigrants or their children back then, only HATE for the south.

    This is one of several passages in the Constitution that is regularly misinterpreted by Politicians to suit their agenda.

    Please support the Convention of States organization who is trying very hard to get an Article V Convention of States called.

    Deo Vindice,
    Harold Levi

    from the North Georgia Mountains

  • Lynn O Jonsd

    10/31/2018 02:57 PM

    We know for a fact that Mexicans in Tijuana, MX came across to San Diego, CA to have their baby so it would bean American and get all the benefits..that we then have to pay for which isn't fair at all.
    Pray something gets changed.

  • Cecilia Sotomayor

    10/31/2018 02:47 PM

    The term jurisdiction would imply that the USA has a right to take action regarding a person, which means the illegals would fall into that criteria. The issue that needs to be resolved by amendment to the constitution of "born or naturalized in the United States from citizens or naturalized persons" are citizens of the United States.

  • Debbie Graham

    10/31/2018 02:36 PM

    I just love how you explain things that my non-political, non-government brain can understand. I am all for legal citizenship if you
    are here legally. If you are from Honduras and have a baby here, that baby is still a Honduras baby, NOT an American citizen.....Makes sense to me!!

  • John Henry Jones

    10/31/2018 02:34 PM

    Mike I think that President Trump should start with the executive order. I know that some liberal judge will do whatever he must do to stop it, then we can take it to the conservative Supreme Court and let them tell us what is right. There is no other country in the world that has birth right citizenship and I for one don't think that the congressional members who adopted the 14 Amendment would agree with what these people are trying to do. If they knew that a person would be able to determine within one or two days when a baby would be born and that they could fly all the way around the world in less than a day to get their feet on American soil so that they can get their kid a citizenship in the USA thereby giving them permanent access to the USA, they never would have made the 14 Amendment! It's time that we STAND UP FOR OUR COUNTRY AND STOP THIS BIRTHRIGHT CITIZENSHIP!!!!

  • Hugh Hudson

    10/31/2018 02:31 PM

    Dear Governor:

    I agree with Andrew McCarthy. A constructionist view of what the 14th Amendment says must be maintained. The phrase "subject to the jurisdiction thereof.." is critical. It is a question of citizen loyalty. Where is the loyalty when foreign born mothers retreat to their homelands with their American born babies. I can find none. I find birthright citizenship to be insane. So, clearly one of the duties of citizens is to be loyal to their country of birth.

    In a related citizenship matter, Vattel, in his "Law of Nations, chapter 19, par. 212, says "The natives, or natural-born citizens, are those born in the country, of parents who are citizens". According to Vattel, whom the Founders relied upon, Obama, whose Kenyan born father never naturalized to the US, is not even a natural born citizen.

    The Latin quote on Governor William Bradford's grave says: “Do not basely relinquish what the Fathers with difficulty attained.”

    It is all about loyalty!

    Thanks,
    Hugh
    Frankfort, Kentucky

  • Tom Williams

    10/31/2018 02:26 PM

    10/31/2018

    Mr. Huckabee:
    I do not support the use of a Presidential Executive order to resolve a constitutional issue. The issue of citizenship is an extremely important constitutional issue and not one the executive branch should decide. Moreover any change at this time will prove controversial and disruptive, so it will need a period of review, education of the public, and some public response either directly through referendum or most preferred, by our two houses of Congress.

    However, I don't see why the President shouldn't ask the Supreme Court for guidance on interpretation. It's possible that the Court could decide that "fly-ins" or those who manipulate the system should go through a normal citizenship process until the legislative branch has a chance to review and act.

    Faithfully,

    Tom Williams

  • Taylor E. Hoynes, Jr.

    10/31/2018 02:16 PM

    Mike, thank you for all you do for God & Country and Christianity. I addressed this issue in an essay “Birth Citizenship (Anchor Babies) Controversy & The 14th Amendment”. We must look at the intent of the 14th Amendment which was a clarification of the 13th banning slavery and freeing them as citizens. The 14th Amendment NEVER Authorized “Birth Citizenship (Anchor Babies) and never intended it to allow that. One of the authors of the 14th amendment was United States Senator Jacob Merritt Howard and he personally added the comment “and subject to the jurisdiction thereof”. We find the background, dialog and intent in the United States Congressional Globe, Senate, 39th Congress, 1st Session page 2890 WEDNESDAY May 30, 1866 IN SENATE. (Page 2887); Mr. HOWARD. "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."
    I cover more detail in my essay if you wish to read further. Thank you and God Bless, Taylor
    READ INTENT BY THE AUTHORS+RULE OF LAW & CONSTITUTION CLICK HERE TO READ Essay & Quotes
    http://www.colonialpublishingco.com/patriots-special/


  • Karen McKee

    10/31/2018 02:16 PM

    My concern is for right now. I want to know HOW sending our troups to the border is going to protect us if they aren't allowed to put their hands on these INVADERS heading toward our border? Is this not considered an act of war? My fear is that they WILL successfully get thru our border. Some of these invaders are ARMED! Our border patrol is vastly unequipeded & sparsely manned to deal with this threat; it IS a THREAT! Something needs to happen NOW!

  • ROBERT MCFATE

    10/31/2018 02:06 PM

    Congress seems to not want to do anything on immigration so just maybe Trump is trying to light a fire under them with an executive order. Seems that there are a lot of things in the Constitution that have been change by passing bill without going through the Constitutional proceeder of Amendment, like all the agency and department that cannot be found anywhere in the Constitution or turn over the authority to make laws and regulations without congress. Our government has destroyed much of the Constitution by delegation of power to everyone but themselves cause if they use their powers few would last for more than one or two election!

  • Francis Dryden

    10/31/2018 02:03 PM

    My wife was born in Manchester, England in 1949. Her parents were Ukrainians that had been German prisoners (her mother in farm labor and her father in a prison camp... they did not know each other at that time). As they were both liberated in what became West Germany, they were advised (as all were) NOT to go back to the Ukraine and they were transported to England were they met, married and had my wife. I would believe they were legal immigrants (or at least refugees) and worked in England (her mother did janitorial work in a hospital and her father worked in coal mines). When my wife was about 1 and ½ years old, her parents immigrated to Canada where after a period of time became Canadian citizens. My wife and I went to England a few years back and her birth certificate was all that she needed! The jurisdiction article makes this all very interesting to me and especially so as my wife and I are now living in Mexico both as permanent immigrants... we are now eligible to become Mexican citizens... my side is very clear in that I am a 17th generation Canadian buy my wife's nationality seems to be very foggy to say the least.

    The word "jurisdiction" is used heavily in Masonic constitutions and in that many signers of the US Constitution were Masons if there are any clues there... I shall research more... The plot thickens.

  • Sandra R. Padilla

    10/31/2018 02:01 PM

    Good afternoon governor,

    I live in Nicaragua and many people fly into the USA to have babies so they can be american citizens and then go to college with scholarships. I have seen many friends who in the decade of the 80s became residents of the USA, then moved back to Nicaragua lived here and 20 years later became US citizens without living in the USA during the years before. There is so much corruption in the legal system in Miami and I imagine also in San Francisco, LA and other ports of entry. I know people with Medicare who never have paid money into the system but through chain migration they became US citizens and get all of the benefits that tax paying americans get.The average american does not know this and the left takes advantages to move their agenda thru. Thanks for writting your newletter, i enjoy reading it everyday. Sincerely, Sandra R. Padilla

  • Kathleen Jenson

    10/31/2018 01:46 PM

    It seems to me that under the juristiction is clear. If you are not under the juristiction of the usa and you have a baby, the baby is not under the juristinction either. if it were true, can any non citizen be drafted? parent or child? can any non citizen say he is not responsible for following our laws since he is an actual citizen somewhere else and follows their laws? It seems to me anyone claiming to be a citizen should have refused the right of citizenship from wherever they came from and have sworn to protect, defend and obey our constitution. No excuses for anyone subscribing to any ideology that is antithetical to that paramount of freedom.

  • Stephen Russell

    10/31/2018 01:43 PM

    Birthright: Proof of persecution at home?? skills, kin already in system or legal.
    I say speed upLegal Immigration alone, speed this & move those UP in the process now.
    CUT time from 2 yrs to 1 yr 6 mos IF have IN DEMAND skills

  • Melody Mercer

    10/31/2018 01:19 PM

    It seems to me we need to proceed carefully because in 20 years how many people will be able to say “I was born in the USA but was not allowed to be a citizen”.
    This could be big trouble!