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 1-25 of 65

  • Mike Mays

    11/05/2018 08:01 AM

    I see the point, but I do not see it as retroactive. Other countries that do this seem to be wanting their native citizenship to decide their fate... I do believe this so that the interigity of a nation does not change ( Just because our population might br 55% hispanic does no mean for us to do everything like Mexico ) Our fore fathers seemed to have been more intelligent and put more thought into the words of our constitution...

  • Edward callagy

    11/05/2018 01:00 AM

    Have your research team see if any amendment past the 11th was correctly ratified. It may be that they were not.
    What next?
    If a law passed is not in concert with the supreme law of the land then it is not a law.

  • Susan Stubbs

    11/04/2018 10:36 PM

    The very act of crossing our borders illegally or intentionally overstaying a visa indicates a person does not consider him/herself under the "jurisdiction" of the United States. Liberals may point to the case of Wong Kim Ark, but his parents were Chinese nationals who obeyed all the laws at the time to enter, reside, and work in the United States. They did not sneak in on a boat from Shanghai, have a baby, claim citizenship for him, and then chain that citizenship to siblings, aunts, uncles, cousins and the spouses of all those relatives.

  • Bobbe R Wilson

    11/03/2018 11:41 PM

    President Trump should avoid prevent setting- what if a Democrat decided we need no militia and bans all guns by executive order? Or some other such move? Executive order should not be tried to change ANY amendment. That's Congress' job. I'm in favor of at least one parent being a citizen for a child to be a US citizen, but let's do this right!

  • Shauna dickerson

    11/03/2018 09:10 PM

    If the president used EO to at least slow down the abuse of this amendment, it would be worth the ensuing chaos. Also, as you pointed out, maybe this would spur congress to do something about it. Thank you Mr Huckabee, I wish Everyone in this country could and would read everything you write.

  • Tom Kessinger

    11/02/2018 05:40 PM

    As an amendment (14th) to our Constitution I would not try to second-guess our forefather. Rather, I would use the common sense interpretation of both Mr McCarthy and Mr. Turley that the law applied to all except the children of the foreign Diplomatic Corps as interpreted by the Supreme Court. With that said, I would have to say that a President does not have authority change our Constitution by Executive Order.

  • Jim whitworth

    11/01/2018 10:35 PM

    If the parents are living here and going thru the process of becoming a citizen then when the parents become citizens then and only then I believe the child should become a citizen without going thru the process. Other wise if the parents don't become citizen then the child should not become one either and return home with the parents. This is what I feel the amendment was for when it was enacted.

  • Tami Sparby

    11/01/2018 09:50 PM

    I agree in what makes one a citizen? How can two illegal aliens produce a "legal citizen of the USA"? Or even one illegal & one legal citizen produce a USA citizen? That's like saying how do you take two sinners & make a sinless baby? As was said of the USA couple who went to France, had their baby, but that didn't make the baby a legal citizen of France??

  • Chris Mitchell

    11/01/2018 02:15 PM

    It is plain and simple; it does not entail anchor babies!. The interpretation is self-evident. Also citing/referencing the rest of it in its entirety, "whereas no state shall make , abridge, deprive any persons life, liberty, or property due process of law". Those born and natural , and subject to its jurisdiction!..... The trouble is politicians, lawyers, judges redefining the law , or anything!

  • Bob Sullo

    11/01/2018 01:37 PM

    I'm not an attorney but, to me based on the original purpose of the amendment and the term "subject to the jurisdiction," it would seem to point to the parents of a child being legally a resident in the U. S. Green card etc. not illegal. it will be interesting to see how the lawyers interpret this.

  • David A. Brooks

    11/01/2018 01:02 PM

    Dear Gov. Huckabee:

    The Amendment says what it says. The intent is supposed to be based on the words used. The Constitution is supposed to mean something, like the right to bear arms, freedom of expression, free exercise of religion, etc. Then you have the extra layer of Congress passing a law recognizing birthright citizenship. It may not be the best policy, but if you want to change the policy, you have to change the law. If the President thinks he can change Constitutional principles by executive order, then he should be impeached. I am a big fan of Vice-President Pence anyway.

  • Miguel Briseno

    11/01/2018 12:49 PM

    Isn't there a law out there that establishes that the illegal presence of any person giving birth in the U.S. does not automatically confers citizenship to her child? Or what about a clause on visas or permits for visitors, students, etc. that address the same?
    Please reply. I read them!...lol

  • Jimmy W. Holmes

    11/01/2018 12:22 PM

    Referring to your recent comment that children born in France to American parents is/or not a citizen of France, my granddaughter was born in France in November,2001. She was not granted citizenship in France but was given the right to claim citizenship of either country when she attained the age of 16. She opted, on her 16th birthday, to be a citizen of the U.S.

  • Nan Lou Hall

    11/01/2018 11:01 AM

    Thank You. This is educational and helpful.

  • Linda Orf

    11/01/2018 09:15 AM

    Seems to me that a good justice would look at and consider the debate at the time of its writing. This very well may go to the Supreme Court one day and I am confident of at least 3 Justices determinations.

  • Jim Paulson

    11/01/2018 08:47 AM

    Dear Mr. Huckabee,

    So why can't the President take another tack and in some way limit or restrict those who may immigrate to this country and from where? The "who" being pregnant women. Perhaps making the woman insert an affidavit of sorts stating that she is not pregnant now and will adhere to all laws governing our immigration policies. It seems to me that he CAN do that as the court has already ruled in his favor in this regard. I just don't know how you would get to the specificity of it.

  • Leticia Gascoin-Ruffie

    11/01/2018 02:47 AM

    I don't understand why there is such a problem with the phrase "subject to the jurisdiction thereof". It has to do with the competence of the courts. People who are natural or native born citizens or naturalized citizens are subject to the jurisdiction of the United States. Persons who are non-resident foreigners depend on their countries' embassies or consulates. As far as I know, foreigners residing legally in the United States (called legal aliens) also depend on their embassies as do the diplomats. From what I understand, these foreigners are "not subject to the jurisdiction of"the United States. These embassies come to the aid of their nationals in addition to a multitude of other tasks. When I was born in the United States in 1947, my mother was a naturalized citizen but my father, who was still a legal alien, registered me at the Embassy of the country of his birth. Thus, I have always had dual-nationality.

    At some point of the discussion these past few days, there was an enumeration of the people who do not receive US citizenship when born on the soil and that included diplomats but also FOREIGNERS and others. Apparently this is what was stated in the original amendment written in the 1860s. I can't seem to find trace of that anywhere. But if this be the case, President Trump would be merely returning to the original intent of the founders, and thus putting an end to the alteration which was occuring over time to suit those who saw a political advantage in widening the scope of citizenship. I cannot imagine that the Supreme court could be against returning to what was, in essence, the original intent.

  • whatsoever you do to the least of my brothers

    11/01/2018 01:05 AM

    Whatsoever you do to the least of my brothers, that you do unto me.

    Happy Halloween. I forgot the unlyrical safe link.
    https://youtu.be/mVeTx1L2zto?list=PLeOEp3BD6Wn5mCdCRQAE46zpvbghkUNgl

    I am not a robot. nor a feckless planet of the apes meet and greet btw.

    must your daughter answer these ridiculous questions when I need a real job?

    please post, for it's a graveyard smash. again, happy Halloween, and god bless the living and the dead, for His kingdom has no end.

    https://youtu.be/mVeTx1L2zto?list=PLeOEp3BD6Wn5mCdCRQAE46zpvbghkUNgl

    so let's start over with the Transylvania twist. https://youtu.be/mVeTx1L2zto?list=PLeOEp3BD6Wn5mCdCRQAE46zpvbghkUNgl

    Vhatever happened to the Transylvania Tvist?

  • its halloween

    11/01/2018 12:58 AM

    Whatsoever you do to the least of my brothers, that you do unto me.

    Happy Halloween

    Vhatever happened to the Transylvania Tvist?

  • Bernice Wittwer

    11/01/2018 12:56 AM

    I agree that birthright citizenship should be changed by Congress, however, congress won’t address this issue. The number one focus of Congressmen is getting re-elected. The issue of birthright citizenship is just too controversial for them to take a stand on and I believe that President Trump understands this. I believe that he realizes that the only way to get this resolved is to force it. By writing an execurive order, the President expects it to be challenged and knows it will end up in front of the Supreme Court (he’s kind of brilliant that way ya know).

  • Lyn Adams

    11/01/2018 12:31 AM

    It sounds to me that what the legislation was designed for is to grant citizenship to former slaves who had lived here their entire lives and children who have at least one parent who is an American citizen.

    I speak as the daughter of a WWII pilot and a Chinese mother who became a citizen after my brother was born in Shanghai and they had 48 hours to escape Mao's brutal communism. My daughter's paternal grandmother became an American citizen after she had my daughter's father in Germany with his WWII American Army soldier daddy. But, these and others in our family lineage became American citizens the way our legal system is set up to work.

    I had friends whose church sponsored Cambodian refugees, who became citizens the same way. These were properly checked concerning health, no criminals, and proper economic support when they arrived and became established.

    I guess people can put their heads in the sand until the problems our system is designed to protect us from hit them personally. Even the fairly liberal Texas Monthly has shown what's it's like owning property where drug smugglers are coming across our border regularly, maybe those people ought to open up bed and breakfast places to host liberals who are for open borders. And criminality aside, if the government is busy taxing the ones providing jobs more and more, how will that affect the hope of our current citizens having jobs? That won't help "the American dream" of what the younger generation sees no longer as the opportunity to pull themselves up by their own bootstraps like the baby boomers and before them. The ones brainwashed in our liberal colleges and psycho media see not an American dream but American entitlement where Robin Hood robs from the rich to give to all the entitled ones from this day forward. Ask anyone whose escaped what started as promises to take care of everyone. Listen to Raphael Cruz in YouTube about how it worked out when Castro promised hope and change!

  • Linda LaGruth

    10/31/2018 10:59 PM

    More and more, I love how this administration puts a laser focus on issues that need to be addressed and refined. Our country has been run slipshod with no attention to these kinds of details and President Trump wants them more refined. Our Congress works to slow-a committee that all have their own agenda not necessarily for the good of the country. I don’t think this should be refined by EO but maybe that will shake things up.

  • Dawn North

    10/31/2018 10:41 PM

    Hello, Mr. Huckabee,
    You truly have a gift for writing and story telling. I enjoy the wit and intelligence that comes through in each article. My question is in regards to the 14th Amendment. I have always wondered why the 13th, 14th, and 15th Amendments were separated. In Jr. High and High school my teachers taught us that they were actually one, that all three referred to the former slaves and their descendants. How hard would it be to condense all three into one.
    . By the way, When I was in Jr. High and High School we couldn't graduate from either if we didn't pass the year end final on early U.S.History, the Declaration of Independence, Constitution, the Bill of Rights, etc., etc. of course that was ages ago...1986. Oh, and the final surprise I went to school in California; but, then again most of my teachers were retired Marines.

  • Kaye Sartin

    10/31/2018 10:28 PM

    To me, when the 14th amendment says born or naturalized means that your parents were citizens already or that you have become a citizen by the correct process. It doesn't mean people who are here illegally. That's what I think when I read born or naturalized. That's just my opinion. I feel sure that those who wrote this amendment were not talking about people who were here illegally. That's just my opinion.

  • Shirley Ragsdell

    10/31/2018 10:25 PM

    I cannot conceive that our forefathers intended that just anybody from any country in this world, just step foot in America and have a baby, it is a citizen. I doubt that they even invisioned the world as it is today. One thing for sure we have God and if we pray, ask God to lead us in the right direction, he will.

    Enjoy your news. I don’t see you on Fox News much anymore. I miss seeing you.