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History: Original Intent and the 14th Amendment (Birthright Citizenship)



Over two years ago, I attended an anti New York City Mosque rally. While at this event, I ran into a couple of young liberal men who had come to argue with their ideological adversaries. In conversation with them, one brought up the 14th amendment, which even though I knew what it was, off the top of my head I couldn’t remember. When I asked for clarification on what the Amendment was about he said in a very sarcastic, half laughing manner “You don’t know what the 14th Amendment is?” So not totally remembering everything about it, I went back and researched the amendment for myself, and what I found was interesting.

Section one of the 14th Amendment of the United States constitution 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is this Amendment that poses a problem in this country’s current immigration debate. Many people read this amendment and understand it to mean that if you are born here, you are a U.S. citizen, no questions asked. What makes this a problem is that under this interpretation, Illegal Immigrants can come into this country and have children (known as Anchor Babies) who immediately become U.S. citizens and are thusly “entitled” to all the benefits of citizenship. This process is known as “Birthright Citizenship.”

There are a few questions that arise from this issue, the first being: “Just how big of a problem is Birthright Citizenship?” As of 2010 in the state of Texas alone, not only are their 1.5 million illegal immigrants living in the country but:

“…at least 60,000 babies are added to their households annually. Parkland Memorial Hospital delivers more of those babies than any other hospital in the state. Last year at Parkland, 11,071 babies were born to women who were noncitizens, about 74 percent of total deliveries. Most of these women are believed to be in the country illegally.” (1)

But the problem is not only in Texas, according to Pew Hispanic Center:

“…approximately 340,000 of the 4.3 million babies born in the United States in 2008 were the children of illegal aliens. Illegal aliens represent only four percent of the U.S. adult population, but their children account for a much larger share of newborns (eight percent) and children under 18 (seven percent)…research reveals that nearly four-in-five (79 percent) of the 5.1 million children under the age of 18 born to illegal aliens were born in the United States and qualified as citizens.” (2)

The second question that must be dealt with is: “Why is this a problem? Doesn’t the Constitution say that anyone born here gets citizenship?” The simple answer to this question is no.

Proponents of Birthright Citizenship claim that when the 14th amendment says “All persons born or naturalized in the United States and subject to the jurisdiction thereof” it means that all you have to do is be born in this country because everyone is subject to the jurisdiction of America’s laws. On the surface it seems like a pretty sound argument, which is why even Republicans are talking about fixing this problem by repealing the 14th amendment, but what they don’t realize it that the amendment need not be repealed; it only needs to be understood correctly, and to do this one must go back and look at the original intent of the author.

In 1997, Edward J. Erler gave testimony before the Subcommittee on Immigration and Claims in Congress. In doing so he quoted Sen. Jacob Howard (the author of the 14th Amendment’s Citizenship Clause) about what the meaning of “Subject to the jurisdiction thereof” actually is:

“[E]very 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” (Howard) (3)

“Senator Lyman Trumbull, Chairman of the Judiciary Committee and a powerful supporter of the Fourteenth Amendment, remarked on May 30th, 1866, that the jurisdiction clause includes those “Not owing allegiance to anybody else… It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.” This was familiar language. The Civil Rights Act of 1866 had defined citizens of the United States as “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” (Trumbull) (3)

“Senator Howard, emphatically agreed with Trumbull’s assessment that Indians would not become citizens of the United States as a result of the passage of the fourteenth amendment:

“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. Certain, 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.” (Howard) (3)

“Clearly, the author of the citizenship clause intended to count “foreigners,” “aliens,” and those born to “ambassadors or foreign ministers” as outside the “jurisdiction of the United States.” Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent. This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive “their just powers from the consent of the governed.”  (Erler) (3)

The author of the citizenship clause excluded children born to foreigners, aliens, and even all members of Indian tribes from gaining immediate citizenship in the United States of America because he did not define “subject to the jurisdiction thereof” as being subject to the laws, but rather allegiance to this country. The entire purpose of this section of the amendment was to give ex Black slaves citizenship, not to provide it upon anyone born here. This isn’t just some interpretation of the 14th amendment; this is the only legitimate interpretation, and the one that must be followed.

So to Democrats (like the two I met in the city) and Republicans alike let it be known, the Constitution of the United States does not give citizenship to all those born in this country, and in order to solve the problem of “Anchor Babies”, we do not need to repeal the 14th amendment, but rather we must enforce the original and correct interpretation of this law. This is the only way to act, because the truth of our supreme law should never be pushed aside for any reason whatsoever.

Sources Used:

(1)   Dallas News:


(2)   Conservative Crusader:


(3)   Erler:,_1997)/Rep._Edward_J._%20Erler_Statement.pdf


(4)   Library of Congress (unused original text):


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