Birthright Citizenship and the Intent of the 14th Amendment

Before the American Civil War was fought from 1861 to 1865, the issue of human slavery was a smoking hot issue.  When slave Dred Scott was relocated by his master to a state where slavery was prohibited, Scott filed a federal lawsuit claiming that he was free by virtue of the fact that he was now living in a state that prohibited human slavery.  The Supreme Court ruled that blacks, slaves or free, did not have the same rights as white men.  The infamous decision, here, was hailed as a victory for slavery and slave owners. It's important to understand that slaves are NOT considered human beings with a bundle of human rights but merely as property of their owners.

Post Civil War years experienced many schemes to deny former slaves and their descendants their  rights and some of these schemes even called for outright deportations of blacks. Hence, the 13th and 14th Amendments to the Constitution were ratified.

The 13th Amendment, ratified in 1865, simply abolishes the legal institution of human slavery in America:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.  

Congress shall have power to enforce this article by appropriate legislation.

The 14th Amendment, ratified in 1868, is much longer, here, and is a whole lot more complicated.  Moreover, it addresses the issue of Birthright Citizenship.

In the context of history, Birthright Citizenship is a holdover from the British Empire.  When the Brits used its military to conquer for its corporatist clients a geographic area that became British Colonies, all the people were viewed as British citizens who owned allegiance to Britain. However, many of these conquered folks did NOT acquire full citizenship rights and were just expected to be loyal to their conquerers.  They were subjects and not fully vested citizens - big difference.

In the context of US history and the 14th Amendment, birthright citizenship translates to protecting African American citizens, former slaves and their descendants from schemes to deny them their rights.  Specifically this clause is currently on the table for debate:

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While birthright citizenship has been interpreted by open borders folks to literally confer citizenship upon any individual who was born on US soil, this was clearly NOT the intention of those who wrote the 14th Amendment.  The only intent of the birthright citizenship clause was to protect African Americans from deportations and denial of their rights as US citizens.

A 2015 National Review article explains it splendidly and it also explains not only the historic context in which the 14th Amendment was written but the history of British subjectship.   I highly recommend reading the entire article.

Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship

Trump Says He Wants to End Birthright Citizenship By Executive Order Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true.

Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.

Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. 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 and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, 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 explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, 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 courts. It means owing exclusive political allegiance to the U.S....

The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.

It's abundantly clear that those who wrote the 14th Amendment NEVER intended for it to be used as an open border mechanism. The 14th Amendment was exclusively written and ratified to protect African Americans.  Anybody who has researched the origins and intent of the 14th Amendment's clause on birthright citizenship understands its originalist intent.

Since we are obviously far removed from its orginalist intent and the birthright citizenship clause has been applied haphazardly and politically, it will indeed required a judicial intervention to once again clarify its originalist intent.