Birthright citizenship

[detbuch]

Originally Posted by Pete F.

I did research this.
He is trying to change the amendment and ignoring the written record of the original debate surrounding the issue.

This is from Congressional Research Service, a part of the Library of Congress
The Fourteenth Amendment and the Civil Rights Act of 1866
Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents.

To "indicate" is not to substantiate, and an unsubstantiated "intention" doubly loses significant weight. This is just a suggestion that some possibly, may have, such intention, but if so, the intention never materialized in the final text. The phrase "subject to the jurisdiction thereof" severely narrows who qualifies for citizenship. And alienage is not mentioned in the Amendment, and if it was intended, then it should have been stated so in the text. Or, if it was intended, then the text should not contain a qualifier such as "subject to the jurisdiction thereof." Instead of the Fourteenth Amendment declaring that “[a]ll 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,” it simply should have stated that "all persons born or naturalized in the United States are citizens of the United States." And children of ambassadors and consuls or any foreign officials could have specifically been excluded. But "subject to the jurisdiction thereof" is a broader range of restriction which includes All subjects, not just foreign officials, but also illegals who would be subject to foreign jurisdiction.


During the debates on the act, Senator Trumbull of Illinois, chairman of the committee that reported the civil rights bill, moved to amend the bill so that the first sentence read, “All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States without distinction of color.”

But this was not adopted.

Senator Cowan of Pennsylvania asked “whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Senator Trumbull replied, “Undoubtedly.” The two disagreed . . . Trumbull asked Cowan whether the children born in Pennsylvania to German parents were not U.S. citizens, to which Cowan replied that Germans were not Chinese, Australians or Hottentots or the like. Trumbull replied that the law
made no distinction between the children of Germans and Asiatics “and the child of an Asiatic is just as much a citizen as the child of a European.”

But the German parents (and I presume as well the Chinese and gypsies) were legally residing in the U.S. and in Pennsylvania and were subject to the jurisdiction thereof. this little exchange did not actually touch on Illegal residents,

Later in the debates,
Senator Johnson of Maryland urged Senator Trumbull to delete the phrase “without distinction of color” because it was unnecessary since even without the phrase he understood that Trumbull’s proposed amendment “comprehends all persons, without any reference to race or color, who may be so born.” Trumbull felt that it was better to retain the phrase to eliminate any doubt or dispute as to the meaning of his amendment.34

But "who may be so born" is qualified by the phrase "subject to the jurisdiction thereof." There has been no Supreme Court decision that has held that children born to illegal aliens are citizens. No Congress has legislated such a right. The notion is based an a 1982 dicta by Justice Brennan which has no definitive legal standing.

So it might be possible to strike down current birth-right for children of illegal aliens by executive order since it has not actually been legislated by Congress nor interpreted as constitutional by SCOTUS. Or it may take and Act of Congress, or even an amendment. But Trump is, in his outlandish seeming way, bringing more attention to the common sense need for the change. And if making an order that is challenged in the Court moves the process along to a critical juncture, that's a good thing. Really. Does it make sense to continue to allow illegal aliens the automatic right to citizenship, or even just the right to take advantage of our system simply by giving birth here. Yeah, the parents aren't going to be deported if they have an anchor baby. So they stay, and can bring relatives, etc. Really? Should this even be a question?