President Donald Trump said this week that he plans to end “birthright” citizenship by executive order.
While it’s an open question whether he actually has the right to do so, it is nonetheless a long overdue and much needed reform to our nation’s immigration system. Trump is attempting to correct a century-old abuse of the Rule of Law. And, our citizenship law will come into line with just about every other advanced nation in the world.
The president is correct. The U.S. Constitution does not confer automatic citizenship upon babies born on U.S. soil to mothers who have entered the U.S. illegally. “Birthright citizenship” is a purported “right” created by activist federal judges out of whole cloth. And, it’s incentivized an entire “birth tourism” industry where pregnant mothers fly in from China or wade across the Rio Grande just to give birth in the United States.
Once their children reach the age of 21, they can petition for immigrant status for their parents, who now move to the front of the line due to the “family reunification” preference. These children are sometimes referred to as “anchor babies;” they give their parents an anchor into US citizenship.
The Congressional Budget Office estimates there are now 4.5 million of these so-called “anchor baby” U.S. citizens.
That’s more than the number of children born each year to US citizen parents.
How did this come about? Advocates of birthright citizenship point to the 1898 case, United States v. Wong Kim Ark, which held the 14th Amendment to the U.S. Constitution adopted the British common law definition of birthright citizenship and that a child born in the U.S. to Chinese parents, who were lawful US residents, is a U.S. citizen at birth.
However, not only did this case not involve parents who were in the U.S. unlawfully, it also rejected the social compact theory of citizenship of our Founding Fathers. America was founded upon natural law, which rejects the definition of birthright citizenship practiced by feudal societies.
Our Founders determined citizenship not solely by the location of birth, but by the consent of those within the social compact as well.
What does the 14th Amendment say exactly? First, this amendment had nothing to do with granting citizenship to foreign babies born in the U.S.; it was about preventing southern states from denying citizenship to newly freed slaves. Second, its text reveals it incorporates the natural law theory of citizenship. It states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Pause on that for one moment. If a person who is born in the U.S. is automatically and without more a U.S. citizen, then why include the second clause?
The second clause – “subject to the jurisdiction thereof” – is not about territory; that’s defined in the first clause, (i.e., persons born … in [the territory of] the United States).
Another said it explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” That’s because those still persons owe allegiance to a foreign nation and the U.S. has not accepted them as citizens.
This means a pregnant Mexican woman who crosses the Rio Grande and illegally enters the United States and gives birth to a child does not confer US citizenship upon her baby. That baby is a citizen of Mexico, not the U.S. citizen. That’s because his mother even though on US soil is still a foreigner, or as she is defined in U.S. immigration law, an “illegal alien.” The U.S. has not accepted her “surrender” of political allegiance from Mexico. Importantly, the American people – and not this Mexican woman – have the right to decide whether to accept her and her baby into our social compact known as the United States of America.
Whether Trump has the power to end birthright citizenship by executive order is a story for another day. In the meantime, the president should be commended for attempting to correct this misinterpretation of the law and restore US immigration and naturalization law to its origin in the natural law of our Founding Fathers.