Does the Constitution Mandate Universal Birthright Citizenship? Here’s the Answer

This should start some lively debate!


Who is a United States citizen by birth? This question has increasingly received national attention, in large part because of President Donald Trump’s promise to “end birthright citizenship.”

As I explain, however, in my recent Heritage Foundation legal memo titled “The Citizenship Clause’s Original Meaning and What It Means Today,” Congress definitively settled that question in 1866 when it passed the 14th Amendment. The problem is that Congress’ answer was far different from what Americans today often assume.

Even though the U.S. government has long abided by a policy of universal birthright citizenship—that is, of treating all persons born in the United States as citizens, regardless of the immigration status of their parents—the reality is that the Constitution doesn’t mandate this policy.

In fact, while the Citizenship Clause eliminated race-based barriers to birthright citizenship, Congress expressly intended to limit birthright citizenship based on the strength of a person’s relationship to the United States.

More importantly, the government today needn’t amend the Constitution in order to restrict citizenship for the U.S.-born children of illegal or non-immigrant aliens. It could simply stop abiding by a broad policy never required by the Constitution in the first place.

Context and Legislative History:

In the 1857 case of Dred Scott v. Sandford, the Supreme Court held that the U.S.-born descendants of African slaves were not and could never become citizens. In short, black people were simply Africans, not African-Americans, and relegated to the status of perpetual aliens in the nation where they were forced to live and die.

This holding created a previously nonexistent permanent barrier to citizenship based on a person’s race or national origin. It also left the freed slaves essentially stateless—they logically owed allegiance to no sovereign except the United States government, but were nonetheless permanent aliens.

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What the 14th Amendment Actually Means

Often the actual meaning of a word or word phrase drifts and over time can change meaning completely in one or two hundred years. This is one of the reasons why we have a Supreme Court -- to interpret intent and meaning in our various laws.

The arguments over the 2nd amendment is an example where "well regulated" was used then in the sense of "well functioning" as in a "well regulated" machine "functions well" and yet now, the argument is made for the "regulation" of gun ownership meaning "restriction" but that is not what the 2nd amendment addresses. It required that a well functioning militia, which was necessary for the physical safety and instant defense of the people of our (new) Nation, the people had to already know how to use the weapon of choice for that period. A gun and the sword were the weapon that was referred to as "arms".

However the intent here is also of importance: No reasonable person would argue that the 2nd Amendment gave permission for the people to own nuclear weapons, for that concept was never in the discussion.

So too, with the 14th amendment. The very idea of millions of pregnant foreigners illegally crossing our borders and demanding citizenship for their anchor babies (and then eventually themselves) and their entire extended families was never discussed. This would have been similar to our founding fathers discussing whether it would be good for the people to own nuclear weapons. They had no knowledge of such a possibility. One can't allow or ban a thing which doesn't yet exist.

The 13th amendment freed the slaves. When questioned what would happen to the children of those slaves, we Americans responded with the 14th amendment which allowed for the children of those legally in the U.S. would be considered citizens. The purpose was ultimately to end slavery and had nothing to do with an invading population.

The 14th amendment states in part :

"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...."

When the 14th amendment was written there was no question about whether a person could simply cross the border and have a baby and then claim citizenship for the child and its entire extended family of hundreds, nor was there any consideration that nearly 50 million foreigners would do so in the following 150 years. When various exclusion acts were passed they were to reinforce the intent of the 14th amendment which was to give citizenship to the children of the former slaves and anyone already legally a citizen the USA, such as our Indian tribes.

It specifically excluded visiting foreigners by the phrase, “...subject to the jurisdiction thereof....” It did not intend to negate either their own will or ours. It was never intended to grant citizenship to any and all, simply on the basis of being born on the U.S. side of our border. And yet we now have the spectacle of hundreds of thousands of pregnant women crossing the border and suing for citizenship. Some even fly into the U.S. on the last day of their term.

The relevant phrase "... and subject to the jurisdiction thereof... " is a legal recommend that there is a prior claim to the effect that they must not have broken the laws of the land in order to get into the USA. They cannot, must not, be here illegally. There is no prior claim in regard to those persons as citizens of another country. For instance, we cannot kidnap a citizen of another country and then claim they are now a U.S. citizen, nor should their baby be considered as such.

If I break into your house and steal your television, I cannot expect to then give it to my children, claiming it is legally theirs. They have no legal claim to that television. It is still stolen, and must be returned. There is a prior claim, under law, to the television. The president of Mexico has even actually laid claim to their citizens who are in the U.S. as illegal aliens!

This legal concept is also recognized by international courts as well. The children of Nazis cannot keep the art and gold and other property stolen from the Jews during the Holocaust of WW II. It is not theirs to keep. In the case of the many tens of millions of Mexico who now claim US citizenship, they must first prove that there was no prior claim to the citizenship of their parent. In their case it is by the nation of Mexico.

Even the president of Mexico has stated that he will go to bat for the rights of their citizens illegally in this country. This statement should discount any claim on U.S. citizenship, he is actually clearly stating that they were -and are- Mexican citizens. In fact the Mexican government constantly reminds the USA that they will defend the pretense of "rights" of their citizens here, to steal both citizenship and jobs from the gringo and his country, (the USA) It is the Mexican government, most notably, their current president himself, making the claims that many of our illegal aliens are Mexican citizens. Therefore, it is clear that there is a prior claim to them under their laws, and international laws of their citizenship status; not here, but there.

The act of stealing into the USA to gain citizenship was never intended to be part of the 14th amendment.

The 11th Amendment states in whole :

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

No one can rightfully claim that the Constitution of the USA applies to the rights of non-citizens, foreign governments, or foreign nations in any point of law. The exception being that we chose to provide courts for the prosecution and defense of non-citizens, including both criminal and civil cases. That is why we nations of this planet have something called law... which is separate to the internal laws of any one nation.

Thus, the 14th amendment does not apply to Mexicans or any other foreigner, and they have no right to a claim of citizenship under the 14th amendment.

What is clear here is that this issue isn’t… it NEEDS clarification. Any matter of law that can swing one way or the other based upon “fair interpretation” of the very same words by two honest brokers needs to be re-written, plain and simple. Otherwise, it’s a he-said, she-said, I’m right, no you’re not, non-stop argument with no decisive conclusion in sight.

The best way to resolve this is for our legislators to propose and debate new language, and the best forum for such a debate would be an Article V  Convention of States to Propose Amendments to the Constitution.

As it stands, the federal government is granting birthright citizenship very broadly to some whose claims are most assuredly illegitimate, thus diluting certain aspects of citizenship for the rest of us, the hundreds of millions of legitimate citizens. To end this practice would be a significant step toward reducing or at least narrowing the scope and jurisdiction of the federal government, an objective that should appeal to all.

A solution as big as the problem ==> #COSProject

We need to find other ways than a con con.  In today's political climate, we would be risking our entire constitution.  I understand both the pro's and the con's.  The risk of a runaway is simply to great to allow such a scenario.

Sorry, Russell, but if you're one of the few still referring to an Article V Convention of States as a "con con," then you have no understanding whatsoever of what I'm talking about. And if you truly did understand even half of what you think you do, you'd be more concerned with our runaway congress than some impossible, imaginary scare tactic from the 80s.

All we ask of you who say that a Convention of States will never happen is that you please stay out of the way while we get it done. #COSProject 

I agree Michael.  We've tried everything to get this country on track but the dems are too full of themselves to listen to anyone.  I also agree that there is no such thing as a con con the way most people use that term.  There is a Constitutional Convention or there is the Convention of States.  This idea of a "runaway convention" is a tactic not to do anything.  I don't cling to that idea.  I've done quite a bit of reading on this and they are two different animals.  Time for a new perspective on this.  Maybe the founding fathers knew this would happen sooner or later and the put Art V in the Constitution just for such times as these.  It's there and they put it there deliberately as they did with every word

Call it what you want, I don't think that changes the risk involved.  I suspect I am as interested in an out of touch congress as you are.  That being said, don't count on me not getting in your way as  you attempt to create whatever you want to call it, to undermine our constitution.  In fact, count on my intentionally getting in your way.

Perhaps I have inadequate understanding of what you are talking about.  Perhaps.  So, instead of telling me that I don't understand, try explaining the half I don't get.  I promise that will work a LOT better than simply telling me I don't understand.  Unlike some, I do make an effort to listen - and to understand the opinions of others.

I agree with you Russell. The Constitution is clear now as it always has been and the political class and their handmaids in the courts twist it's meanings and turn it upside down at a the whim of their choosing. We will not avoid another revolution by ignoring the fact that there are many within the courts and in office that refuse to be constrained by any constitutions or laws that stand in the way of Socialism/Communism even though they have taken an oath to support and defend  them. We had better keep track of the names of these or they will fade back into the shadows when the fighting starts in earnest. Any ConCon or Article V would be hijacked and subverted to their purposes regardless of the starting points agreed to at the outset. The NWO does not play by our rules their motto is that of the Communist "By any means necessary." and they mean it. We can not count on any of their oaths or promises if that oath, promise or law stands in the way of the next step toward Communism. We had better learn the lessons that have been taught time and again over the last century regarding communism. 

Absolutely true! Thanks.

Exactly like guns that don't kill people (people do), our constitution isn't the problem, people that manipulate it are the problem.

I keep asking, what in our constitution and/or bill of rights do we need to change that cannot be changed without this out-of-the-norm, COS, con con, Art. V, or whatever it is to be called?

I also have repeatedly asked, who is going to be in this committee?  I pose my question this way.  Let's say, that each state gets to send two members.  That is 100 people for the 50 states.  Now, we don't know that this would be the make up of the committee, but it is not outside reason to make this assumption.  Should this be the case, who can name even 100 people that could or would approach this assignment with ONLY the future of our country as their primary AND ONLY concern?  Even among us within this group, which is, by and large, a pretty reasonable bunch, would of us would not desire to take the advantage to add in our own special interest coverage?  Frankly, this aspect scares me to death.

In 1787, in that committee, they were to approve unanimously.  One of the first things that happened, is that this was changed to only 9 of the 13 had to approve.  Then, they came away with a whole new plan, NOT the one that they were intended to accomplish, but a whole new plan altogether.  Now, I  do not know the future, but I do have my reservations, and the example of 1787 to go by.  In the present political climate, I consider doing this to be very, very risky.  As many times as I have asked for the list of 100 people that we could trust to do the right thing, I have had zero responses.  I will ask again:  Do you, can you, find 100 that you would trust?  Let's hear them, and vet them a bit.  I dare you.

(The only thing I would add is I definitely want to be one.  Maybe so do you, but I don't know about you, so...)

You've asked two questions here, Russell… who gets to go and how they are chosen. Please allow me to respond:

Since becoming involved with this movement, I've discovered that men and women of the same quality and caliber of the Founders still exists, but they are not in Washington, D.C. Sure, there may be a few newly-elected, genuinely dedicated and patriotic legislators in Congress, but they are far outnumbered and overwhelmed by the old guard, the jaded and corrupt career politicians who put party and politics over principle and snuff out all attempts by the freshmen to affect any real change.

Washington, DC, is without a doubt the most powerful, and therefore the most corrupt, city in the world, and no one who enters its enormous sphere of influence, no matter their best intentions, can help but be changed by it... and never for the better. For decades, we've been sending these good people to Washington, only to see them disappear into a meat-grinder and come out the other side just so much baloney!

Where I've discovered this cadre of good, strong, constitutionally-conservative legislators is at the state level, hundreds of our locally elected state senators and state representatives who populate the 99 chambers of the 50 state legislatures across the country who are getting on board with this movement. Most if not all are patriots first and politicians second, even those among them who are lawyers... and none is using their state-level office as a springboard to Washington. Every one whom I've met personally, whose writings I have read, or whom I've watched on video rise to speak to their colleagues from the floor of their legislatures in support of an Article V Convention of States possesses an over-arching optimistic view of the future rooted firmly in the Framers' vision at the birth of our nation.

These are not careerist but citizen legislators who only want a free and open national debate in a forum guaranteed to introduce the rarely discussed principles of limited government, of fiscal restraint, and of Originalist thinking to a public starved for such concepts. And it is just such a debate that will assure you, me and a skeptical public that there are indeed leaders among us, men and women ready and willing to rise above their personal ambitions, to identify the problems, and to propose the sorely needed solutions that we will never get from Washington.

Article V of the Constitution gives them the authority to act... all they need now is the support and encouragement of the public, you and me, the constituents whose best interests they have all sworn to represent.

Do not dismiss these patriots simply because you are not aware of them. Remember, absence of evidence IS NOT evidence of absence.

Now, as to selection of the delegates, to the best of my knowledge, each of the states that has passed the legislation sponsored by the COSProject to date has either already passed sister legislation that clearly determines delegate selection, or is in the process thereof. These bills are typically referred to as "Faithful Delegate" laws, and will show up in a Google search.

Given that the sole purpose of this amendments convention, and the only reason that the states are signing on to the movement, is to reduce the size, scope and jurisdiction of the federal government, it's a logical conclusion that the 34 states needed to convene the assembly will do their best to ensure that good, strong, constitutional conservatives, well-versed in Originalism, either duly-elected or democratically appointed, will make up the vast majority of delegate / commissioners in attendance.

Additionally, each selected delegate will operate under a mandate issued by their legislature, sworn to support only those proposals that:

1) Reduce the size, scope and jurisdiction of the federal government,
2) Impose fiscal restraints on the federal government in the form of a rational balanced budget amendment, and
3) Set mandatory term limits on all federal officials, including the judiciary.

Those are very strict parameters, and they are immutable. Since this is 2019, not 1787, and real-time communication is a reality, every delegate will be subject to monitoring and immediate recall by their state legislature. Many states already have or are considering penalty clauses in their Faithful Delegate legislation classifying failure to perform as a crime.

Now, another important thing to understand is that a Convention of States can only PROPOSE amendments. It cannot change the law. It cannot amend the Constitution. All it can do is debate the things that everyone agrees need to be done, then submit a list of suggestions, or PROPOSED AMENDMENTS, to Congress. Once they've done that, their work is done, they adjourn, and everyone goes home.

It's then up to Congress to examine the proposals and make certain that there aren't any "dangerous" suggestions on the list. Any proposals that do not fall with the three limitations listed above will be tossed out, and the rest will then be forwarded out to all 50 state legislatures for ratification as written, or rejection.

The Constitution requires that 38 states must agree to each proposal, or nothing changes. That's a very high threshold, as it should be, and it must be met before one single word of the Constitution is changed.

One thing we can all be certain of is that there will be plenty of press coverage around the clock in every state in the Union as 50 state legislatures debate these proposed Constitutional Amendments. It will be the political event of the century, and that's an understatement. Back during the days of our Founding Fathers, it took ten years to get from Revolution to Ratification, so this isn't going to happen as some quick deal in a back room somewhere overnight.

The only thing we have to fear is doing more of the same or doing nothing, because we don't need a fortune-teller to show us where we're headed.

We MUST get involved. We CAN make a difference. Sign the petition ==> #COSProject

Russell, please... if you're going to re-write history, at least do it in a way that any Junior High student can't debunk after 30 seconds in Google.

You wrote that "In 1787, in that committee, they were to approve unanimously. One of the first things that happened, is that this was changed to only 9 of the 13 had to approve."

What you've conveniently left out is that the change you describe was a PROPOSAL. They did not "change" it at the Philadelphia Convention, and you either know that and are being deliberately deceptive, or you DON'T know it and are incredibly ignorant.

In either case, that statement has robbed you of any credibility that you presumed to have had.

That PROPOSAL was eventually and properly ratified by all 13 states BEFORE they voted to ratify or reject the new Constitution.

Again, as I said in my opener, please try to show the rest of us a little respect... there may be some idiots here, but I can guarantee you that there are nowhere near as many as you suspect, and I damned sure ain't one of them!

This is a conversation that has been held many times and, I might add, off the topic of the article.  But can any of you tell me this:  why is Article V in the Constitution?  It was not an oversight, a mistake or a gesture.  It was put there for a reason.  That's how the founding fathers operated, deliberately.  So why is this Art V in there?



My reading of history convinces me that most bad government results from too much government.
Thomas Jefferson



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