“All persons born and 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 14th Amendment to the U.S. Constitution.)
Related: Birthright citizenship: Bedrock principle is good for America
is correct to challenge birthright citizenship. As we commemorate 150 years since the 14th Amendment’s passage in 1868, it is long overdue for our nation to conform to the true intent of the “subject to the jurisdiction clause” which confers United States citizenship.
It is unknown to most Americans that prior to the adoption of the 14th Amendment, United States Attorneys General Caleb Cushing in 1856, and Jeremiah Black in 1859, both wrote that “the doctrine of perpetual allegiance,” or citizenship determined by the soil, is inadmissible in the United States. They concluded, at the time of the Revolution our nation’s founders rejected regal government and feudal law.
Rep. John Bingham and Sen. Jacob Howard, the chief authors of the 14h Amendment’s “subject to the jurisdiction clause,” stated it grants citizenship for a birth to a parent who is under complete jurisdiction, who owes allegiance to our nation. They stated the clause does not apply to someone who is subject in some degree to the political or civil jurisdiction.
Five years after the amendment’s passage on Dec. 1, 1873, President Ulysses S. Grant proclaimed in his State of the Union address, “The United States… had led the way in the overthrow of the feudal doctrine of perpetual allegiance.”
President Trump is upholding President Grant’s and the nation’s original understanding that the 14th Amendment ended birthright citizenship.
In 1898, the Wong Kim Ark decision granted citizen births to Chinese parents who, under the Emperor of China, were prohibited from becoming citizens of other countries. The Ark decision concluded, “…the words ‘subject to the jurisdiction thereof’ in the Fourteenth Amendment must be presumed to have been intended by Congress …, to mean the same as the words in the case of The Exchange.” This case precedence confirms inadmissible aliens are not subject to complete jurisdiction.
United States Supreme Court Chief Justice John Marshall, the principal founder of our constitutional law system, authored The Exchange decision in 1812. Chief Justice Marshall wrote of the distinction between civil and territorial jurisdiction; persons residing with the nation’s “consent” are under civil jurisdiction. Justice Marshall clarified, “But if the property of an alien, be forcibly… carried within the territory, no consent is implied, and consequently there is no ground for jurisdiction.” The case confirms jurisdiction over things and persons is the same.
Wong Kim Ark cited defining precedence from The Exchange, “…the whole civilized world concurred that a foreigner is not understood as intending to subject himself to a jurisdiction absent his document proving the nation’s consent.” The justices understood an alien under territorial jurisdiction, without this document, is subject to “arrest and detention.”
Compliant with that legal precedent, Wong Kim Ark decided, “Chinese persons … are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here …” In the 2012 Congressional Research Service report to Congress, Margaret Mikyung Lee omitted this crucially significant section, imprecisely writing, “The holding does not make a distinction between illegal and legal presence …”
Clearly, the justices conditioned granting citizenship to children whose parents were residing lawfully with permission, signifying doubt this ruling would be granted to aliens without legal presence.
Six Wong Kim Ark justices wrongfully declared the congressional debates that govern the accurate meaning of “subject to the jurisdiction,” were inadmissible. Opposing that misjudgment, Chief Justice Fuller and Justice Harlan, a renowned civil rights activist, dissented from this ruling. They concurred with the government’s case, to grant citizenship to children of parents ineligible to become citizens defies the Constitution’s evident meaning of jurisdiction.
President Trump’s administration can also initiate a court challenge concerning citizen births of “birth tourists” and inadmissible aliens, which can ultimately be decided by the U.S. Supreme Court. There is confidence a majority of the justices will comply with the 14th’s original intent, and the conclusive jurisdiction decisions of John Marshall, the most revered Supreme Court Justice in American history.
Congress must follow the relevant words of former Supreme Court Justice John Paul Stevens, “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”
All Wong Kim Ark justices concurred a citizen is born to a parent who is, or is eligible to become, a U.S. citizen. This is how Congress can legislatively define citizenship by amending the Immigration and Nationality Act to follow the correct intent of the Fourteenth Amendment’s authors.
When Congress adheres to this intelligent, common-sense intent, the United States of America will at last, no longer practice feudal law and no longer silence the Founding Fathers.
Hilton, a San Diego resident, advocates for entitlement and immigration reforms.