Our Friend Dr. Thomas Krannawitter clears up the confusion over birthright citizenship and the 14th amendment.
Donald Trump mentions ending “birthright citizenship.” And now the Constitutional Clownshow cranks up: Pundits, quick to offer opinions, don’t want to be bothered learning about the subject first. Sigh.
The 14th Amendment, for those who don’t know, was designed during the aftermath of the Civil War for one specific purpose: To overturn the Supreme Court’s 1857 decision in the Dred Scott case. (I devote an entire chapter to the Dred Scott case in my book, Vindicating Lincoln, linked below.)
In Dred Scott, the Supreme Court of the United States government, in an opinion offered by lifetime, loyal Democrat, Chief Justice Roger Taney, argued that anyone of ANY African ancestry — regardless of whether a person might be legally free or slave, regardless of whether a person lived in a state where slavery was allowed or prohibited by law, and regardless of whether a person had a slight shade of darkness in his skin color or was very dark black — COULD NOT BE A CITIZEN OF THE UNITED STATES “WITHIN THE MEANING OF THE CONSTITUTION.”
The 14th Amendment, a thoroughly Republican effort, reversed that Supreme Court ruling, stating clearly that “ALL PERSONS” — which includes people of “Africa ancestry” — “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.”
The authors of the 14th Amendment also stated clearly on the floor of Congress, in speeches that were preserved in the Congressional Globe and available to anyone today, that the clause “and subject to the jurisdiction thereof” specifically disqualified from U.S. citizenship anyone born on American soil to parents who hold political loyalty to or citizenship in any foreign regime.
The “jurisdiction” of which the authors of the 14th Amendment wrote was not legal jurisdiction, it was POLITICAL jurisdiction, a matter of civic loyalty. More, they specifically discussed, debated, and REJECTED the idea of “birthright citizenship” precisely because that idea was a legacy of medieval Christian theocratic monarchy, which held that anyone born within the province of a King automatically became the King’s subject whether he/she wanted to be a subject of the King or not. They argued that the foundation of theocratic monarchy — birthright citizenship, or “subjectship” — is hardly fitting for a free people who associate through mutual consent, not some “divine right” claptrap used to authorize the rule of some church crowned prince over others.
The 14th Amendment meant that a black woman born in America into slavery in, say, 1840, and who possessed no citizenship in and had no political loyalty to any regime other than the American regime, was a U.S. citizen (if she wanted American citizenship). It does NOT mean that a baby, born on American soil, from a woman who is a citizen of a foreign country — who is either legally visiting the U.S. temporarily or who came to the U.S. purposefully in defiance of American law — is automatically a U.S. citizen. To suggest as much is to turn the 14th Amendment on its head.
Personally, I have never found the 14th Amendment very satisfying, and not simply because it has been tortured and twisted by American government officials in more ways than I can here enumerate or explain. I don’t like the 14th Amendment because it does not make explicit that citizenship in a genuinely free regime should be based on consent, and the consent must be mutual between the people who form the politically sovereign United States and each individual who is to be a citizen. I think the important subject of citizenship could be presented far more clearly than it is in the 14th Amendment, and I think mutual consent should be at the center for determining the citizenship of all Americans, current as well as potential future citizens and regardless of where they are born or whence they come.
Something like the 14th Amendment — or something better, had it been available at the time — was absolutely necessary to reverse the Supreme Court’s massively unjust, unconstitutional, and unsound opinion in Dred Scott. That opinion was nothing but a disguise for the Democratic disdain for people with dark colored skin, evidenced by the fact that the Dred Scott decision was heralded by Democrats all over the United States, North and South. But the 14th Amendment ought not be confused with earlier Amendments, especially the Bill of Rights, which as Hamilton explained with perfect clarity, were both unnecessary and potentially dangerous. The 14th Amendment, in other words, ought not be confused with the Bill of Rights, because the Amendments that constitute the Bill of Rights (unlike the 14th Amendment) in no way affect or alter the very few powers that We The People granted to OUR national government and the very many powers that We The People did NOT grant to our national government.
Does Donald Trump understand these matters? Maybe. But unlikely. I won’t hold my breath. He likely knows little more than the pundits who are pontificating in our news of late.