It is just plain wrong to claim that children born of parents who are temporarily in this country as students, tourists or illegal aliens are automatically U.S. citizens.
They do not meet the 14th Amendment’s jurisdictional and allegiance obligations. They are, in fact, subject to the political jurisdiction and allegiance of the native country of their parents. The same rule for the parents applies to the minor children and offspring of illegal aliens, because children born in the United States to foreign citizens or brought here by their parents as minors are citizens of their parents’ home country.
It’s really quite simple.
Citizenship is either inherited from parents of conferred through the naturalization process by an act of law, via an application for citizenship and careful review and vetting by USCIS. Those are the only two ways to get it.
Political Jurisdiction means nationality and/or national fealty. The nationality of tourists, legal permanent residents, temporary visa residents, and illegals is determined by which country issues their passport and which country can conscript them into military service, not where they might happen to sleep tonight.
The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “all persons born OR naturalized in the United States AND subject to the jurisdiction thereof” are citizens.
That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship. That little “AND” makes all the difference.
Critics (and the propagandist media like CNN, now marching out all sorts of fake experts offering all sorts of wrong interpretations, erroneously believe that anyone present in the United States has by the simple act of setting foot inside our borders “subjected” himself “to the jurisdiction” of the United States. That interpretation would extend citizenship to the children of tourists, diplomats, and illegal aliens alike. But that is not what the key qualifying phrase in the 14th Amendment means, and there’s plenty of evidence of that original intent meaning.
The original meaning of the word “jurisdiction,” used in the 14th Amendment, refers to the political allegiance and fealty of an individual and the jurisdiction that a foreign government has over that individual.
The fact that a tourist or illegal alien is subject to our city, state and federal laws and our courts if they violate our laws does not place them within the full political “jurisdiction” of the United States, as that term was understood and defined by the framers of the 14th Amendment. It merely means that person’s geographical presence makes him subject to our civil laws and legislative jurisdiction.
Just because he can get a ticket in the US doesn’t mean he can pop out two dozen instant citizen children here.
Political jurisdiction is quite another thing.
Only naturalization and taking the oath of citizenship would put a foreign born person with no US citizen parents under political jurisdiction.
There is no automatic citizenship for anyone but those born to citizen parents on US soil, or, alternatively, proving to a US consular office in their country of birth that one has been born abroad to a US citizen. That person would then be issued a CRBA from the US consulate so he can file for a passport.
So…as parents, you need to present a US birth certificate or US passport to have a citizen baby. Even that wasn’t possible without an act of Congress. Technically then, babies born abroad to US citizen parent or parents is a naturalized citizen. They are not considered natural born citizens under Article II of the US Constitution. They cannot serve as president or Vice President, even if they’re born on a military base or in a US embassy to citizen parents.
The 14th amendment’s language was derived from the 1866 Civil Rights Act, (which not one Democrat voted “yes” on) which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included «not owing allegiance to any other country».
Many do not seem to understand the distinction between partial or temporary territorial jurisdiction—which subjects all who are present within the geographical territory of a political sovereign to the jurisdiction of that sovereign’s laws—and complete political jurisdiction, which requires full, undivided allegiance to the sovereign as well.
If you are in Rome, you can’t expect American laws to govern your behavior. You must “do as the Romans” or be subject to prosecution under Italian and Roman law. That doesn’t make you subject to full Italian jurisdiction, it just means that if you break their traffic laws or littering you could get a ticket or be summoned to court for something that perhaps isn’t a violation at home.
If you were accused of doing something very serious, that’s when the diplomats and the embassy might get involved to help you with a defense, provide sanctuary or help get you out of the country. If an embassy can help a citizen in a foreign country, that’s only because that embassy and its nation, not the host country, has full jurisdiction and fealty rights over that citizen.
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States. Tribes are separate sovereigns. Like separate countries.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924.
There clearly would have been no need to pass such legislation as the Citizenship Act of 1924 if the 14th Amendment was intended to extend citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents happen to be and where they are citizens.
Even in U.S. v. Wong Kim Ark, the 1898 SCOTUS case most often cited by “birthright” supporters, due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen. The left wing media, through their “legal analyst” mouthpieces, cite Elk above as “proof” for establishment of birthright citizenship. These media dopes fail critical reading.
Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the key operational phrase “subject to the jurisdiction thereof.”
The State Department has erroneously interpreted that statute as a mandate to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by executive fiat, not because it is in any way required by federal law or the Constitution or the 14th Amendment, meant to correct the citizenship of former slaves and their posterity.
We are one of a very small number of countries that provides birthright citizenship, and right now, yet we do so based not upon the requirements of federal law or the Constitution, but based solely upon an erroneous executive interpretation, with the mistake magnified by continued erroneous readings and espousals by media and faux legal television “experts”. That erroneous executive interpretation means that an opposing executive order can clarify and reverse it, since Congress cannot change the Constitution without a 2/3 majority and since the 14th Amendment is already clear on the point it makes.
What isn’t clear is why anyone would seek to interpret it differently, to our national detriment. Such interpretation can only create an entire class of dependents and grifters who would only present a massive burden to our society.