Birthright citizenship does not exist in the Constitution

Published 8:02 am Sunday, August 30, 2015

By Harold Pease, Ph. D

Amazingly Presidential Candidate Donald Trump is right; birthright citizenship does not exist in the Constitution.   The establishment media, including Fox News, jumped all over Mr. Trump like a swarm of Africanized honey bees over a pot of honey, attempting to portray him as ignorant on the Constitution.  Although he may be on many other things, he is dead right on this part of his recently released immigration plan.  Even Bill O’Reilly, on the O’Reilly Factor, ignorantly castigated him on this point.  Trump held his ground that the 14th Amendment never authorization birthright citizenship.  The ignorance of the establishment press is overwhelming.

Although most of us have great sympathy for those who were infants or born here when their parents illegally crossed the border and have lived here all their lives and know no other country, the 14th Amendment for the casual reader seems to validate such:  “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.”  A more careful read, however, shows that such was specifically denied, consider the phrase “subject to the jurisdiction thereof.”  The purpose of the clause was to guarantee citizenship to freed slaves and their descendants after the Civil War.

The concept of “anchor” babies refers to those whose parents are illegal immigrants into the United States and while here have a baby.  That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship.  The debate for or against the practice of allowing citizenship for babies of illegal’s born in the U.S. rages on with virtually no one going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.

Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation.  He said: “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, andsubject 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 minister accredited to the Government of the United States, but will include every other class of persons.”

It was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I.  Those sneaking across our borders in the cover of darkness are clearly foreigners, and not subject to the jurisdiction of the United States, and thus are specifically exempted from citizenship.  Notice the exclusion of babies born of ambassadors while here as well.  The record of the Senate deliberations on the 14th amendment shows this to be the view of the Senate.

There is no such thing as automatic citizenship from this amendment without serious distortion of it.  In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, “What do we mean by complete jurisdiction thereof?  Not owing allegiance to anybody else.  That is what it means.”

Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have citizenship.  How can a child of such a parentage have what his parents clearly do not have?  How many are born illegally in the United States per year?  Statistics are difficult to validate but the Pew Hispanic Center study estimated 340,000 in 2008 alone.  If they in turn are used as sponsors for their parents in their quest for citizenship such could be a million per year.

Citizenship was denied some of my ancestors.  Native Americans owed allegiance to their Sioux or Apache or Blackfoot, or whatever, Indian nations and thus were not yet “subject to the jurisdiction thereof” of the nation they sought citizenship in.  Certainly one must cease to be at war or conflict with the newly embraced country.  This was not granted until 1924 when this requirement was satisfied.

Many of our Mexican friends send portions of their checks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth—the United States.  Some vote in Mexican elections from here.  It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States–and most admit it.  Unfortunately for them the U. S. Constitution specifically denies such citizenship.

To the many “bees” from both political parties, and the establishment press, who wish to destroy Mr. Trump’s presidential ambitions, you will have to look elsewhere.  On this issue he is on solid constitutional ground as expressed by the Founders of the 14th Amendment.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit