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Universal birthright citizenship “isn’t required by the 14th Amendment’s text or historical context,” Senior Legal Fellow at the Heritage Foundation Amy Swearer assesses in a video released by PragerU on Monday.
“It’s inconsistent with the earliest legal interpretations of the amendment, and it isn’t compelled by Supreme Court precedent,” Swearer says.
Birthright citizenship has become a major battle for the Trump administration after President Donald Trump signed an executive order immediately after taking office to end birthright citizenship for the U.S.-born children of illegal aliens — a policy once also opposed by Democrats. About 250,000 anchor babies are born every year in the United States, anchoring their illegal alien parents in the country.
On May 15, Trump’s Department of Justice (DOJ) argued to the Supreme Court that lower courts have gone far beyond their jurisdiction by blocking the order, while Soros-backed CASA Inc. and the Asylum Seeker Advocacy Project argued that the president does not have the authority to end birthright citizenship.
With this ongoing legal battle as a backdrop, Swearer breaks down the historical context of birthright citizenship in the nearly six-minute PragerU video. Swearer poses that the question underlying the issue of birthright citizenship is whether the Constitution grants citizenship to anyone born in the United States, “even the children of people who have entered the country illegally, or the children or foreign tourists who owe our country no allegiance.”
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Swearer points the the 14th Amendment of the Constitution, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
“Case closed, right? Not so fast,” she says. “The key phrase here is ‘subject to the jurisdiction thereof.’ It creates a second condition for birthright citizenship beyond merely being born on American soil. But it also raises another question: who is born subject to U.S. jurisdiction?” [Emphasis added]
“To answer that question, we need some historical context,” she explains. “The 14th Amendment was ratified in 1868, just three years after the end of the Civil War. Its purpose was to rectify the infamous 1857 Supreme Court decision, Dred Scott v. Sanford, in which the court declared that black Americans were not and could never be citizens, even after slavery was abolished. In 1865, Dred Scott technically remained the law of the land. Black Americans were left in limbo. They were no longer slaves, but they still were not citizens. The 14th Amendment resolved the issue — once and for all, these newly freed slaves and their descendants were certainly born subject to the jurisdiction of the United States. This had been their home for generations. If they were not American citizens, to which other nation did they still belong?” [Emphasis added].
“So while the 14th Amendment resolved the issue as it related to race, its authors would’ve been shocked to learn that we now interpret these words to make citizens of virtually anyone born on U.S. soil under all circumstances,” she continues.
Swearer goes onto to cite the 1875 treatise of Yale Law Professor William C. Robinson, who explained that the 14th Amendment grants citizenship only to those born within the jurisdiction and allegiance of the United States, “a condition that requires, at a minimum, lawful permanent residence in this country,” she said.
“This was also the original understanding of the federal government,” Swearer explains.
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Swearer cites several examples of how the federal government has previously interpreted the 14th Amendment in citizenship cases:
In 1885, for example, the State Department rejected the citizenship claim of a man named Richard Greer. Yes, Greer had been born in Ohio 18 years earlier, but his German parents never intended to stay in the United States and returned with their son to Germany shortly after his birth because Chrysler’s parents did not owe the United States political allegiance. Their son wasn’t born subject to its jurisdiction, at least not within the meaning of the 14th Amendment citizenship clause.
Similarly, in 1890, the Justice Department considered the citizenship claim of a child born to one Mary Devereux, a pregnant Irish woman being held on a ship in New York Harbor. While awaiting immigration approval, Devereaux left the ship for medical treatment and subsequently gave birth in a New York hospital. Authorities later denied her immigration application because Devereaux wasn’t eligible for lawful admission to the U.S. Her U.S. born daughter was not recognized as a U.S. citizen. Both mother and child were sent back to Ireland.
Swearer also references the 1898 Supreme Court case United States v. Wong surrounding the question of birthright citizenship:
Kmar Wong was born and raised in San Francisco, the son of Chinese immigrants. In 1895, after a short trip to China, Wong returned to the U.S., only to be detained by authorities and threatened with deportation. Wong sued, arguing that he was an American citizen by birth. The Supreme Court agreed. While this decision is often cited as proof that the 14th Amendment mandates universal birthright citizenship, it proves nothing of the sort. Just as the amendment was meant to undo the immoral Dred Scott decision, the Wong decision was meant to undo the immoral Chinese Exclusion Act of 1882.
That law prohibited immigrants of Chinese descent from becoming American citizens, no matter how long they lawfully lived, worked, and raised their families here. Wong’s parents were what we might today call lawful permanent residents. San Francisco was their home, and according to the court, Congress could prevent lawful Chinese immigrants from becoming naturalized citizens, but it could not subject their U.S. born and raised children to perpetual alien status because of their race.
“Why then, are so many so confident in their assertion that universal birthright citizenship is established Constitutional law? Maybe a better question would be, what constitution are they talking about?” Swearer ultimately concludes.
