Exclusive: Are Children Born of Illegal Immigrants US Citizens?

by VINCENT GIOIA July 15, 2010
Wong Kim Ark
A common misconception is that the Constitution through the Fourteenth Amendment confers citizenship upon everyone born in the United States whether or not they were born to an illegal alien. Actually, the Constitution itself does not provide citizenship to those born of illegal parents; the Supreme Court only said it did in an 1898 decision known as ‘U.S. v. Wong Kim Ark’, and it is politically correct to accept this Supreme Court decision while ignoring others.

The problem is that the court majority in the Wong Kim Ark case, as is so often today, ‘made law’ according to their personal beliefs and not what those that wrote the Constitution (or in this case, the 14th Amendment) actually intended at the time it was written. Justice Horace Gray, who wrote the majority decision in the Wong Kim Ark case, reveals exactly what the majority was up to by avoiding discussion about the intention of the clause by the two Senators most responsible for the language of the Fourteenth Amendment, Senators Jacob M. Howard and Lyman Trumbull.

It is clear the court majority in this case recognized the only reasonable way to come to the conclusion they wanted was to ignore the recorded legislative history left behind by the writers of the amendment. Justice Gray acknowledged this when he wrote:
 
"Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and (sic)[but] the debates in congress are not admissible as evidence to control the meaning of those words."

Justice John Paul Stevens disagreed with this attempt by the Wong Kim Ark majority to rewrite the Constitution:

"A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent."
 
Justice Gray and the court majority refused to consider both the original intent and legislative history behind the words because they knew it would be fatal to their pre-determined intent of reversing what Congress had inserted into the US Constitution by the fourteenth amendment so they avoided what senators Howard and Trumbull wrote and said.

Why did Justice Gray avoid the legislative history and the original intent of those writing the 14th amendment?

Well the first major hurdle Senator Howard presented to the court majority in this case is that he specifically declared the clause to be by "virtue of natural law" and national law only recognized citizenship by birth to those who were not subject to some other foreign power. The Senator also stated when he introduced the amendment:
 
“The clause [the citizenship clause section 1] specifically excludes all persons born in the United States who are foreigners, aliens, and persons who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
 
It seems clear that the amendment only applies to American citizens (natural law), regardless of their race - which is exactly what was intended. Remember, the amendment was written after the Civil War with the intent to acknowledge the citizenship of those who had been slaves, not foreigners subject to national laws of other countries and not already citizens of the United States.

The court majority had an even bigger problem to impose their will on American citizens because Senator Howard also said in May, 1868, that the

"Constitution as now amended, forever withholds the right of citizenship in the case of accidental birth of a child belonging to foreign parents within the limits of the country." *
 
Senator Trumbull, the co-author, additionally presents a problem for the court majority by declaring:

"The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."
 
Sen. Howard followed that up by stating that:
 
"The word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
 
Illegal aliens and visitors do not enjoy the same quality of jurisdiction as a citizen of the United States. Can an alien be tried for Treason against the United States? Senator Howard clearly intended that the phrase "subject to the jurisdiction" does not apply to anyone other than American citizens.

The writer, John A. Bingham, of the 14th amendment’s first section, considered the proposed national law on citizenship as
 
"simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."
 
Ironically, the Supreme Court had already decided the meaning of the 14th amendment's citizenship clause before the Wong Kim Ark case, and unlike the majority in the Wong Kim Ark court, did consider the intent and meaning of the phrase “subject to the jurisdiction”. In the Slaughterhouse cases [Slaughterhouse Cases Butchers' Benevolent Association of New Orleans v. The Crescent City Livestock Landing and Slaughterhouse Co. (1873)] the court noted that
 
"[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."
 
Even the dissenting minority in the Slaughterhouse cases affirmed that the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.

Another Supreme Court decision [Elk v. Wilkins (1884)] correctly determined that
 
"subject to the jurisdiction"of the United States required "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance."
 
America's own naturalization laws from the very beginning never recognized children born to aliens to be anything other than aliens if the parents had not declared their allegiance to the United State - a sure sign that the framers intended children under national law followed the citizenship of their father until he had become naturalized.

Also of interest, Justice Fuller, chief justice of the court in the Wong Kim Ark case, said,
 
“The words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power.”
 
He was absolutely correct.

Considering both the legislative and language history behind the citizenship clause (14th Amendment, Section 1) – and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling completely worthless. The decisions in the Slaughterhouse and Elk cases are still the only controlling case law that is fully supported by the history and language behind the citizenship clause as found in the first section of the 14th amendment, and it should be so today.

*14th Amendment

“Section 1. 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.”
 
FamilySecurityMatters.org Contributing Editor Vincent Gioia is a retired patent attorney living in Palm Desert, California. His blogs at www.vincentgioia.com and he may be contacted at gioia@gte.net.

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