In his efforts to get illegal immigration resolved and/or reversed, President Elect Trump has recently hinted of an executive action to repeal birthright citizenship. This seems to indicate a multiple level of misunderstanding the Constitution of the United States. First is his premise of overriding a Constitutional provision via executive or legislative action. When will our elected officials stop with the efforts to ignore or rewrite a Constitutional provision without taking it to the States?
Secondly, Trump could accomplish his goal by ABIDING by the 14th Amendment. In an excellent article by Professor Edward J. Erler in July of 2008, he helps us to understand the original intent behind the citizenship clause. Section one of the Amendment (which contains the citizenship clause) begins as, “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.” Professor Erler states,
“…during the debate of the [14th A]mendment, Senator Jacob Howard of Ohio, the author of the citizenship clause, attempted to assure skeptical colleagues that the new language was not intended to make Indians citizens of the U.S. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, rose to support his colleague, arguing that ‘subject to the jurisdiction thereof’ meant ‘not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.’ Jurisdiction understood as allegiance, Senator Howard interjected, excludes not only Indians but ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ Thus ‘subject to the jurisdiction’ does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S.”
In the past there has been support from the Mexican government itself for asserting this argument as applied to illegal aliens in the U.S. of any nationality. Former Mexican President Felipe Calderon helped us better understand this provision of the 14th Amendment in 2008 while attending the opening of a Mexican Consulate in New Orleans. A report of the event notes,
“At the opening of the consulate, President Calderon, said Mexico wants to assist and protect its citizens in the states of Louisiana and Mississippi that the consulate will serve,” and further quotes the former president: “With the reopening of this consulate, we will be able to guarantee those Mexicans who live and work in Louisiana and Mississippi that they will have the support of the Mexican government. It is my commitment that no matter where there is a Mexican citizen, he or she will also have the support of our government.”
Author asserts that these are basically re-statements of the Constitutional provisions as explained in Professor Erler’s article, courtesy of the then president of Mexico.
Hellbound and Down 