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Few of President Donald Trump’s new implementing decisions Have caused just as much unrest as it about birthright.
This order prohibits federal agencies to issue or accept citizenship documents Children born in the US If none of the parents has an American citizen or legal permanent residence permit at the time of the birth of the child.
Critics regard it as a blatant unconstitutional, including a poorly informed federal judge in Seattle who issued a temporary order against it last week. But the new policy fits exactly within the text and the original meaning of the fourteenth amendment.
During the first century after the Ratification of the fourteenth amendment, There would be few lawyers who would have monitored a guideline like that of Trump. In any case, they would have been even more confused about why the federal government started to spend passports in the first place on children born in the US of illegal foreigners, tourists and ‘temporary aliens’.
Migrants from a caravan in Tapachula, in the state of Chiapas, Mexico, marching on January 20, 2025 to the American border. (Isaac Guzman/AFP via Getty Images)
Contrary to what is often thought, the fourteenth amendment does not say that all people born in the US are citizens. It says that “all persons born or generalized in the United States and subject to the jurisdiction thereof” are citizens. The second, critical, conditional phrase is ignored for convenience or incorrectly interpreted by proponents of a ‘universal’ birthright citizenship.
This was intended to make the protection of the Civil Rights Act of 1866 constitutional, which stipulated that “all persons born in the United States and not subject to any foreign power” would be regarded as civilians.
The language change did not reflect the wish of the congress to abolish the legal definition or to adopt universal birthright citizenship. In fact, the Civil Rights Act remained valid for seventy years, with both courts and lawyers assuming that it was completely in accordance with the Citizenship Clause.
That is because the initiators of the fourteenth amendment have made it clear that ‘being subject to the Jurisdiction’ of the US means that you owe your political loyalty to the US and not to another country. Children born of alien beings are citizens of the country of birth of their parents, and therefore owe their loyalty to, and fall under the jurisdiction of that country of birth.
The history of the law shows that the Congress wanted to remove the permanent, ras -based barriers for citizenship with the fourteenth amendment – and not to grant citizenship to anyone born within the geographical boundaries of the United States. It was not the intention of the congress that the birthright would apply to the children born in the US who owed only a limited loyalty to the United States.
Even modern proponents of ‘Universal Birth Test Burgrance’ admit that the children born on American territory from diplomats or tribal Indians do not obtain birthright citizenship. In fact, they and their children were only made as citizen by the Indian Citizenship Act of 1924-legislation that would not have been necessary if the fourteenth amendment had adopted Common Law rules for universal birthright citizenship.
Although critics of the order of Trump claim that the universal birthright is ‘the land of the country’, the Supreme Court has never finally dealt with this issue.
The first time that the highest court in the country spoke of the significance of the citizenship clause-in the famous Slaughter-House cases of 1872-it stated that the phrase “subject to its jurisdiction” children of ministers, consuls and citizens or excluded subjects’. of foreign states born in the United States. ”
People put their hand on while they take Trouw’s oath during a naturalization ceremony in the Stavros Niarchos Foundation Library on July 2, 2024 in New York City. (Photo by Michael M. Santiago/Getty Images)
The Court confirmed this concept in every v. Wilkins in 1884, whereby the birthright was denied to an Indian because he “immediately owed” his tribe and not to the United States.
Most legal arguments for the universal birthright ignore these early cases and refer to the decision US v. Wong Kim Ark from 1898. However, that decision simply stated that children born in the US are of legal permanent residents.
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Furthermore, that decision related to the constitutionalness of acts created a class of legal permanent inhabitants who, like black people under DRED, were constantly excluded from citizenship exclusively on the basis of their race – exactly the situation that the fourteenth amendment had to prevent .
The current immigration and nationality laws of our country no longer create this kind of permanent, race-based barriers for citizenship. Nowadays, the federal status that the citizenship defines (8 USC § 1401) simply repeats the language of the fourteenth amendment, including the phrase “subject to the jurisdiction thereof”.
Even modern proponents of ‘universal birthright citizenship’ admit that the children born on American territory from diplomats or tribal Indians do not obtain birthright citizenship.
Today, that language still has the same meaning as when it was prepared and ratified. It does not evolve to anything else, just because previous governments have wrongly interpreted it more generously.
As a result, the President has the authority to order federal agencies to act in accordance with the original significance of the fourteenth amendment, and to only issue government documents and benefits to those persons who actually under the jurisdiction of the United States traps.
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The order of Trump is far from an attempt to rewrite the constitution or ‘put an end to the birthright’, but is a much -needed price correction that should have taken place for a long time, which has been reversed for decades that had never been imposed at all constitutionally.
Amy Swearer is a Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies of the Heritage Foundation. Hans von Spakovsky is manager of the Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies of The Heritage Foundation.
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Hans von Spakovsky is a senior legal fellow at the Meese Center for Legal and Judicial studies of The Heritage Foundation and manager of the Election Law Reform Initiative of the Think Tank.
