Citizenship without consent? Not so fast

The ink was barely dry on President Trump’s executive order overturning birthright citizenship for children of illegal immigrants when the ACLU filed a federal lawsuit on behalf of illegal alien plaintiffs. In the coming days, the left will flood the media with claims that invaders can force citizenship on us, arguing the 14th Amendment somehow guarantees this.

Leftists will cherry-pick a single nonbinding footnote from a poor legal decision that misinterpreted an earlier flawed ruling. These arguments ignore previous precedent, the original intent and plain meaning of the 14th Amendment, national sovereignty, and the foundational principles of the social compact. Instead, they selectively reinterpret the law to achieve their desired political outcome of extending our sacred birthright to illegal immigrants — all while disregarding a long history of uninterrupted case law indicating the opposite.

Some critics accuse President Trump of attempting to repeal the 14th Amendment. Nonsense. Citizenship cannot be stolen without consent.

I will systematically debunk the argument that the Constitution mandates citizenship for anchor babies. But we must understand the scope of Trump’s order. The policy only applies to children born to parents who are not legal permanent residents. It also applies prospectively, beginning 30 days after the order was signed.

This policy does not strip legal immigrants of citizenship nor revoke citizenship from children of illegal immigrants who obtained it under the previous policy. Opposing the straightforward principle of granting citizenship only to those born to lawful, permanent residents is both indefensible and revealing.

The truth about the 14th Amendment and citizenship

The case liberals and pseudo-conservatives cite to justify granting citizenship to children of invaders is the 1898 Wong Kim Ark decision. However, even the idea of interpreting the Constitution to mandate automatic birthright citizenship for legal immigrants — something I support as a policy — was clearly an activist ruling that overturned precedent.

Rep. James F. Wilson (R-Iowa) was chairman of the House Judiciary Committee during the drafting of the 14th Amendment. He emphasized that the amendment was “establishing no new right, declaring no new principle.” In 1866, Wilson said, “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen.”

The idea that an amendment intended to guarantee basic rights to freed slaves — who had lived in the U.S. for centuries and owed allegiance to no other jurisdiction — would later be used to prevent the regulation of citizenship for immigrants of all backgrounds is scandalous.

The first sentence of the 14th Amendment states: “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 meaning of “subject to the jurisdiction thereof” is clear from historical records. Sen. Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee, explained during debates over the 14th Amendment that “subject to the jurisdiction” means subject to “complete” jurisdiction — meaning not owing allegiance to any other authority.

While anyone present in U.S. territory is subject to partial jurisdiction — they must obey American laws and can face prosecution for breaking them — this clause limits citizenship. Congressional drafters intentionally included the phrase “subject to the jurisdiction thereof” in the citizenship clause to apply only to those under “complete” jurisdiction as Americans.

Sen. Jacob Howard of Michigan, the principal author of the 14th Amendment’s citizenship clause, emphasized this limitation. Candidates for citizenship, he said, must be born in the U.S. and owe allegiance solely to the United States. Howard clarified that “full and complete jurisdiction” means the same jurisdiction “in extent and quality as applies to every citizen of the United States now.” He explicitly excluded “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”

Immigrants swear this allegiance only after completing the naturalization process. As part of this process, they take an oath renouncing “all allegiance and fidelity to any foreign ... state.” This oath, in use since the nation’s founding, reinforces the framers’ understanding of “full and complete” jurisdiction. It applies to legal permanent residents on the path to citizenship, as regulated by Congress. It does not — and cannot — apply to illegal immigrants or individuals on temporary visas.

Case law on citizenship and sovereignty

The 1872 Slaughterhouse Cases provide one of the most authoritative explanations of the 14th Amendment. Justice Samuel Miller affirmed that the amendment’s primary purpose was “to establish the citizenship of the negro.” He also clarified that the phrase “subject to its jurisdiction” was intended to exclude children of ministers, consuls, and citizens or subjects of foreign states born in the United States” (emphasis added).

In Elk v. Wilkins (1884), Justice Horace Gray explained that “subject to the jurisdiction” means being “completely subject to [the United States’] political jurisdiction and owing them direct and immediate allegiance,” rather than being merely subject in some respect or degree.

Justice Gray’s opinion drew guidance from an 1873 legal opinion by Attorney General George Henry Williams. As a senator at the time of the 14th Amendment’s ratification, Williams asserted that the amendment was not intended to include all aliens:

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.

For the first few decades after the 14th Amendment’s ratification, Congress retained the power to regulate the citizenship of children born to legal immigrants and certainly visitors and those present without legal consent.

Twelve years later, however, Justice Gray, who had previously upheld this interpretation, reversed course in Wong Kim Ark. He established a precedent that used the 14th Amendment to guarantee citizenship to all children of legal immigrants from around the world.

While granting automatic citizenship to children of all legal immigrants may be reasonable policy, the decision in Wong Kim Ark was an activist ruling. It disregarded the nation’s founding principles and contradicted the practices upheld during the first 30 years of the 14th Amendment. Modern birthright citizenship scholars would benefit from studying Chief Justice Melville Fuller’s compelling and scholarly dissent, which offers a detailed critique of the ruling.

Illegal immigrants vs. birthright citizenship

Let’s set aside the academic debate over birthright citizenship for legal immigrants. Justice Gray made it clear this concept would never apply to those present without U.S. consent. The very case often cited by leftists to justify granting citizenship to illegal immigrants actually contradicts their claims.

In Wong Kim Ark, Gray specified that citizenship applies to children of immigrants living in the U.S. “so long as they are permitted by the United States to reside here.” That statement alone dismantles their argument based on this precedent.

Additionally, Gray used the legal term “domiciled” 12 times in his opinion to describe those eligible under the Citizenship Clause. For over 130 years, case law has consistently defined those present without consent as not being “domiciled” in the United States. This precedent originated with Gray himself in Nishimura Ekiu v. U.S., where he clarified the term.

Under the Chinese Exclusion Acts, Chinese immigrants were deemed inadmissible, meaning they lacked consent to enter the United States. Gray was emphatic:

It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.

The same man whose rulings the left misinterprets to claim a “right” to birthright citizenship for children of illegal aliens established three critical principles.

First, the political branches hold unquestionable authority to exclude anyone for any reason, even discriminatory ones.

Second, the courts lack jurisdiction over matters of sovereignty.

Third, only those lawfully admitted can be considered “domiciled” in the country. Gray distinguished between domiciled legal permanent residents, non-domiciled temporary visitors, and illegal aliens, who are categorically not domiciled.

In Wong Kim Ark, Gray confined the scope of his argument to children of “resident aliens” who are under the country’s “allegiance and protection.” Illegal aliens cannot reasonably be considered owing allegiance to the United States.

This argument gains further weight when considering the reciprocal nature of “allegiance” and “protection.” As the court noted concerning citizenship in Minor v. Happersett (1874):

Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

We are now told that our heritage, history, and wealth of case law on sovereignty mean nothing. This claim rests on a mindless, activist, and nonbinding footnote by Justice William Brennan in Plyler v. Doe (1982), which inexplicably included illegal aliens within the scope of Wong Kim Ark. If so-called conservative legal scholars accept this judicial sleight of hand, they deserve to live under the tyranny of judicial supremacy and its many flaws.

Some critics accuse President Trump of attempting to repeal the 14th Amendment. Nonsense. In reality, these opponents are the ones undermining both our Constitution and the Declaration of Independence. The Declaration asserts the citizens’ right to government “by the consent of the governed.” Citizenship cannot be stolen without consent.