Is Current Birthright Citizenship Legit?
In early 2015 GOP candidate debates, Carly Fiorina took issue with Donald Trump’s stance against providing citizenship to the offspring born in this country of non-citizen parents. In response to Trump’s indications, Fiorina indicated that the 14th Amendment needed to be repealed, which is easier said than done. “The truth is you can’t just wave your hand and say the 14th Amendment is going to go away.”
Here is where other GOP candidates stand on so-called “birthright” citizenship.
Is it true that the 14th Amendment would need to be repealed, and that this birthright citizenship is constitutionally guaranteed? No, none of that is true at all, and those advocating the removal of this corrupt birthright citizenship should be aware of the historic facts, detailed below.
The truth is that the Congress that drafted the 14th Amendment never intended to confer citizenship to the offspring of alien parents born on American soil. It was not until THIRTY years after the 14th Amendment’s 1868 ratification that the courts fabricated anchor baby citizenship from thin air, in contradiction to the direct intent of the Congress, and in contradiction to several Supreme Court decisions interpreting the 14th Amendment. Anchor baby citizenship is entirely a fabrication of the corrupt Gray Court in U.S. vs Wong Kim Ark (1898).
Contrary to some beliefs, what the 14th Amendment indicates is nothing but the terms of citizenship as it had always been in this country. However, the intent of the 14th Amendment was perverted by the Supreme Court, with the collusion of the Justice Department and San Francisco attorney George Collins. Associate Justice Horace Gray, in United States vs Wong Kim Ark, changed the applicability of jurisdiction in the 14th Amendment, from the complete and total “political jurisdiction” of the United States, which even Gray himself recognized in Elk vs Wilkins, to then become mere “legal jurisdiction”, being subject to laws. It’s not as if being subject to laws has anything at all to do with citizenship, but this is the fallacy Gray presented in the ruling.
The intent of the 14th Amendment did not make citizens of offspring of alien parents born on American soil, but rather the Supreme Court’s malfeasance did so. And the Supreme Court’s methodical malfeasance can be demonstrated, and the decision reversed, without requiring any amendment.
Below is the legislative history regarding citizenship, demonstrating the applicable terms of jurisdiction, from the time of the 14th Amendment’s ratification in 1868, until the Wong Kim Ark decision in 1898.
TIMELINE: JURISDICTION IN THE 14th AMENDMENT
1862 John Bingham:
“Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognize the principle that I assert.” (Cong. Globe, 37th, 2nd Sess., 407 (1862))
1866, two years before the 14th Amendment, by U.S. statute Sec. 1992 of U.S. Revised defined who is a citizen:
“All persons born in the United States and not subject to any foreign power … are declared to be citizens of the United States”
1866, John A Bingham:
John A. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
The 1866 Congressional debates confirm that the two citizenship clauses — the one in the 14th Amendment, and the one in the 1866 Civil Rights Act — were intended to have the same meaning and effect. During those debates, the primary framers of the 14th Amendment citizenship clause,
Sen. Jacob Howard and Sen. Lyman Trumbull, made it clear that “jurisdiction”, as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power:
Sen. Lyman Trumbull: “The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.”
Sen. Jacob Howard: “[i] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so 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.
(Madison(2007))
Civil Rights Act of 1866: The very same Congress that drafted the 14th Amendment (two months before the 14th, and NOT recognized in Wong Kim Ark) defined citizenship in the first section:
“all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 112 U.S. 99-103.
July 9, 1868: 14th Amendment was ratified:
“All persons born or naturalized in the United States, AND subject to the jurisdiction thereof, are citizens of the United States…”
1873, Slaughterhouse Cases
In the Slaughterhouse Cases, the Supreme Court indicated that the U.S.-born children of foreign citizens (including legal residents) are not subject to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment: ‘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 phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
What is significant about this recognition is that it excludes not only the offspring of illegal aliens, but also the offspring of legal aliens as well. Furthermore, Children of Ambassadors, are excluded by the same reason as those children of non-citizen aliens, as are the offspring of Indians (not taxed) who reside in Indian territories within the United States.
1873 the United States Attorney General George Williams, who was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled the word “jurisdiction” under the Fourteenth Amendment to mean, which Justice Gray would recognize in Elk v.Wilkins years later:
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)
June 22, 1874, six years after the 14th’s ratificaiton, Congress issued a joint congressional report, House Report No. 784, stating:
“The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.”
This is relevant because children of aliens (legal and illegal) are born with the allegiance (and citizenship) of their parents, as a general right recognized by the Law of Nations.
1884, Elk vs Wilkins:
The Supreme Court reiterated that an individual is a 14th Amendment citizen only if the United States has complete jurisdiction over such individual at the time of her or his birth or naturalization. Elk v Wilkins (1884) : “The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”
Gray went on to further state in Elk: “Indians born within the territorial limits of the United States…although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof, within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government…”
1898, U.S. vs Wong Kim Ark:
The Court, under Justice Horace Gray, chose to award Wong Kim Ark with U.S. citizenship, rather than just recognize Ark’s “resident alien” status and right to return to the U.S., when Ark was prohibited from returning from China under Congress’s 1882 Chinese Exclusion Act.
The Wong Kim Ark decision fabricated a previously non-existent right to U.S. citizenship, nowhere indicated by Law or Amendment over the 30 years since the 14th, nor during this country’s entire previous 111 year history – thereby grossly “legislating from the Bench”.
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