Despite the Media-Driven Rhetoric, the Constitution’s 14th Amendment Does Not Grant ‘Birthright Citizenship’

by James D. Agresti

Michael Anton, a former national security official in the Trump administration, recently argued in a Washington Post op-ed that the current federal practice of granting citizenship to the children of illegal immigrants “is an absurdity—historically, constitutionally, philosophically and practically.”

A number of media outlets have published fiery rebuttals declaring that Anton is dead wrong. They claim that the 14th Amendment to the U.S. Constitution gives citizenship to all children born in the U.S., except for the children of diplomats.

However, the legislative history of the 14th Amendment proves that it does not award citizenship to the children of illegal immigrants or anyone who is not legally and permanently residing in the United States.

Background

In 1866, shortly after the Civil War ended and slavery was abolished, a bloc of Congressmen called the “Radical Republicans“ passed a civil rights law to ensure that African Americans had the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….” This law applied to former slaves but not to foreigners, and thus, it stated that:

all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property….

To guarantee that the Civil Rights Act of 1866 was constitutional, the Radical Republicans fought for and secured passage of the 14th Amendment to the U.S. Constitution in 1868. This amendment mirrors key elements of this act and reads in part:

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.

The sentence above is known as the “birthright citizenship” clause, and under the current prevailing interpretation of it, children born in the U.S. to illegal immigrants, visitors, and tourists automatically become U.S. citizens. Hence, they:

• are eligible for all state and federal welfare benefits, such as food stamps, housing, home energy, child care, and health insurance.
• can sometimes serve as shields to prevent their parents from being deported.
• can sponsor their relatives to become legal permanent residents and U.S. citizens.

In 2009, Pew Research estimated that 73% of the children of unauthorized immigrants were U.S. citizens.

The Pivotal Evidence

The U.S. Senate record of debate on the birthright citizenship clause shows that Republican Jacob Howard proposed it on May 30, 1866. In his opening statement about this matter, 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, 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.

The senators then discussed the meaning of the proposed language and voiced conflicting views about it. With regard to the phrase “subject to the jurisdiction,” Howard explained that:

the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction.

As ratified, the birthright citizenship clause of the 14th Amendment contains the exact wordsproposed by Howard. Hence, there can be little doubt that it means exactly what he said it means.

Hollow Analyses

Among the multitude of news outlets and websites that have published rebuttals to Anton, all of them ignore the fact that the sponsor of the birthright citizenship clause said that it applies only to people under the “full and complete jurisdiction on the part of the United States … in extent and quality as applies to every citizen of the United States now.” This is the most significant evidence in this debate, because it shows that this clause excludes the children of foreigners.

Many of the rebuttals argue that when Howard said this provision “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,” he only meant foreign government officials. For example, Daniel W. Drezner, a professor of international politics at Tufts University, claims:

Anton wants the reader to believe that Trumbull is listing distinct categories of individuals. What Trumbull was actually doing was listing synonyms to describe the same category of individuals, namely the children of foreign officials.

First, Drezner misidentifies the speaker of this statement as Lyman Trumbull, but the Senate proceedings show that it was Jacob Howard who said this. Second, Drezner’s argument is belied by the facts above, namely that:

• the key purpose of the 14th Amendment was to constitutionally support the Civil Rights Act of 1866, and that law excluded from citizenship those who were “subject to any foreign power….”
• Howard said that this clause “is simply declaratory of what I regard as the law of the land already….”

Drezner and others quote various snippets from the U.S. Senate debate as if they determine the meaning of the birthright citizenship clause, but the full record of the discussion reveals that the senators expressed differing views about it. Thus, by cherry-picking quotes from this dialogue, one can make a variety of claims about what it means. In the end, the definitive authority on this issue is Jacob Howard, who proposed and clarified the words that became a part of the U.S. Constitution.

Conclusion

Based on a faulty interpretation of the 14th Amendment, the federal government is awarding citizenship to the children of nearly everyone who gives birth in the United States. As a result, they are entitled to receive welfare, vote when they become older, and obtain other benefits of U.S. citizenship. This includes the children of illegal immigrants, temporary residents, and even foreigners who are vacationing in the U.S.

The legislative history of the 14th Amendment reveals that the birthright citizenship clause was enacted primarily to protect the civil rights of African Americans. It does not grant citizenship to the children of anyone who is not legally and permanently living in the United States.

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James D. Agresti is the president of Just Facts, a think tank dedicated to publishing rigorously documented facts about public policy issues. He holds a Bachelor of Science in Mechanical Engineering from Brown University and has worked as a designer of jet engine components and systems, a technical sales professional, and chief engineer of a firm that customizes helicopters. He is also the author of Rational Conclusions, a meticulously researched and acclaimed book evidencing factual support for the Bible across a broad array of academic disciplines.

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