Inscribed on posters, billboards, bumper stickers and summer outerwear, enshrined in song, and frequently used as patriotic rallying cries are slogans such as “Born in the U.S.A.” and “Proud to be an American,” to name just a few. Citizenship is implied by these mottos and for most people citizenship is assumed to be a birthright. This is simply not the case and is a misconception with consequences that continue to plague the Nation. Citizenship is not necessarily or automatically achieved by virtue of birth. A person’s place of birth within the territorial jurisdiction of the Nation does not and has never guaranteed citizenship.
Article 1, Section 8, clause 4 of the United States Constitution expressly gives the Congress power to establish uniform rules concerning citizenship. Since the ratification of our Constitution in 1787, numerous laws have been enacted to further amplify the definition to include the Fourteenth Amendment in1868. Subsequent to this Amendment, the U.S. Supreme Court had restricted citizenship by excluding both freed and enslaved persons of African decent in the infamous “Dred Scott Case.” Congress then passed the “Civil Rights Act of 1866” asserting that “All person born in the United States and not subject to any foreign power, excluding Indians not taxed, are herby declared to be citizens of the United States.” The Fourteenth Amendment, ratified in 1868 was enacted to further quantify the term “citizen” and to clarify the Civil Rights Act of 1866. The immediate impetus for this Amendment was to constitutionalize and validate the Act. A constitutional amendment was thought to have the advantage of preventing later repeal. One conspicuous change in language from the Civil Rights Act was the elimination of the phrase “Indians not taxed” the language used within the Amendment stated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” The Fourteenth Amendment’s “Citizenship clause” required that two constitutional prerequisites be met: (1) birth (or naturalization) in the United States and (2) being “subject to the jurisdiction of the United States.”
The widely held, though erroneous view, that any person entering United States territory, on short visits or illegally, has somehow subjected themselves to the “jurisdiction (laws) of this Nation,” is simply wrong. Such an interpretation is erroneous because it renders the entire “subject to the jurisdiction” clause unnecessary. If the act of being “born” in the United States implies citizenship alone, then the “citizenship clause” is redundant. It is clear that any child born on U.S. soil to illegal parents or who were temporary visitors to this country remains a citizen or subject of their parent’s home country. It is absurd to consider children of parents residing only temporarily in the United States or students on work visas to be citizens. This rationale would include those born to nationals at war with this nation and here to commit acts of sabotage. How ridiculous!
Foreign nationals are not necessarily entitled to birthright citizenship. Ambassadors and other foreign diplomats are specifically excluded, as are children of foreign military personnel on a reciprocal treaty basis. Also excluded from citizenship are the children of members of invading armies who were born on U.S. soil when it was occupied by the foreign army. This situation has of course has not occurred but remains a plausible circumstance.
One key to this debate is the allegiance of the child’s birth parents. The “Naturalization Oath of Allegiance to the United States of America” is required of all who aspire to become American citizens. It reads, in part, “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been subject or citizen.” To allow those who are illegally here to claim citizenship for off-spring born in this country would be a mockery of our citizenship laws. These illegal aliens are obviously not “subject to the jurisdiction of the United States,” but to their country of origin.
As previously mentioned, the circumstances of birth alone do not guarantee citizenship. It was not until 1948 that American Indians were granted full citizenship rights. The Indian Citizenship Act of 1924 and the Nationality Act of 1940 finally granted citizenship to all indigenous American Indians. The issue, as with illegal immigrants, was the same “citizenship clause” of the Fourteenth Amendment that required being “subject to the jurisdiction of the United States.” Past treaties had made allowances for tribal autonomy.
It is clear that the framers of the Constitution and the Fourteenth Amendment had no intention of freely giving away American citizenship simply by virtue of birth. It appears clear and convincing that these authors intended only to grant citizenship to persons born here who were also “subject to the jurisdiction” of the United States. They understood that phrase to have the same meaning as “and not subject to any foreign power,” as included in the Civil Rights Act of 1866. It would be difficult to argue that illegal aliens and temporary visitors are not subject to a foreign power.
Even those persons who are born in an outlying territory of this Nation, such as American Samoa, are not accorded automatic citizenship. They are United States Nationals, but not citizens unless they meet the criteria for citizenship as previously outlined.
It remains up to Congress to enter this continuing debate and clarify the Fourteenth Amendment. Illegal immigrants and children born to them do not by clear definition qualify for automatic citizenship. We need to follow our Constitution and demand the same from our Congressional delegation. The future of our Nation is at stake!
… My two cents, for what it’s worth.