The Patriot Post ·

Birthright Citizenship?

By Mark Alexander

Only if your mother was “subject to the jurisdiction thereof” (Ciudadanía por Nacimiento – sólo si su madre estaba sujeta a su jurisdicción)


Given the far-reaching implications of illegal immigration, and more recently the Left’s objections to enforcing immigration law in border states like Arizona, the 14th Amendment of our Constitution is receiving some long-overdue attention.

Like every contemporary political debate, the questions raised concerning the meaning of the 14th Amendment are, essentially, about whether we are a nation subject to Rule of Law codified in our Constitution, or we are subjects under the rule of men, subject to a “living constitution” amended primarily by judicial diktat and legislative mischief, rather than amended by the people, as prescribed in Article V.


Section 1 of the 14th Amendment, which pertains to immigration and naturalization, reads, “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.”


“All persons born or naturalized in the United States…”

This language is plain and easily understood.



So, what does “subject to the jurisdiction thereof” actually mean? Beyond the apparent plain language definition, a factual interpretation is supported by the context in which this amendment was framed and ratified.

After the War Between the States, freedmen (former slaves) may have been liberated by Abraham Lincoln’s 1863 Emancipation Proclamation, but they didn’t enjoy the same rights as those who freed them. Though slaves were in the United States legally, and thus, “subject to the jurisdiction thereof,” they had no assurance of equal rights.


The first definition of “citizenship” in legal references is “nationality or legal status of citizenship.”

The 1866 act defined “persons within the jurisdiction of the United States” as all persons at the time of its passage, born in the United States, including all slaves and their offspring.


Michigan Sen. Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (the Citizenship Clause), noted that its provision, “subject to the jurisdiction thereof,” excluded American Indians who had tribal nationalities, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

According to University of Texas legal scholar Lino Graglia, the second author of the Citizenship Clause, Illinois Sen. Lyman Trumbull, added that “subject to the jurisdiction of the United States” meant “not owing allegiance to anybody else.”

Thus, in the plain language of its author, those who are born to parents who are legally in the U.S., who have no allegiance to a foreign power (as diplomats), are thus, “subject to the jurisdiction thereof,” and have claim to birthright citizenship. Just as plain is the fact that the 14th Amendment would exclude those born to illegal aliens.

Despite the confidence of the 14th Amendment’s authors that it wouldn’t be subject to legislative and judicial mischief, subsequent generations of legislatures and judges have so twisted its plain language as to all but alienate it from its original intent – as they have likewise done with the rest of our Constitution.

For that reason, House Minority Leader John Boehner (R-OH) is now proposing a measure to restore the original intent of the 14th Amendment’s Citizenship Clause by way of another amendment.


Where does that leave the birthright citizenship debate?

Today, more than 20 percent of all children born in the United States are born to those who have entered the United States unlawfully, and who are, by any authentic definition of the 14th Amendment, NOT subject to the jurisdiction of the U.S. because they are not citizens. Yet Barack Hussein Obama and his Socialist Bourgeoisie assert that the “anchor babies” of illegal immigrants are owed all the entitlements of an American citizen.

The near-term consequences of this fallacious assertion have dire implications for the future of Liberty, for the Rule of Law, and for the very survival of our nation. But this is consistent with Obama’s objective of “fundamentally transforming” our nation by breaking the back of free enterprise, which is a foundational component of Liberty.

In 1776, Benjamin Franklin, John Adams and Thomas Jefferson proposed the national motto, “E pluribus unum” (“Out of many, one”), but that unity will not last much longer if we do not take dramatic action to restore the Rule of Law.



Now, writes Graglia, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry,” making a child born to that immigrant “an American citizen, entitled to all the advantages of the American welfare state.”

For the record, according to both the Justice Department and Homeland Security, “A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment.”


