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HOME > PUBLICATIONS > Exclusive: Are Children Born of Illegal Immigrants US Citizens?

July 15, 2010

Exclusive: Are Children Born of Illegal Immigrants US Citizens?

Vincent Gioia

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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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Yes they are!! And when their illegal parents get deported they can go with them or stay here without them---Its not up to America to support them--WE DID NOT BREAK THE LAW--THEY DID--I think if they are under 18 they should be deported right along with their illegal parents UNLESS they have LEGAL family here that can & WILL SUPPORT them--IF NOT THEN-SEE YA WHEN YA DO IT RIGHT--THE LEGAL WAY

posted by: laura brown
Thursday, July 15, 2010 at 12:06 AM

Laura, not all situations are that simple honey. What happens when a foreigner is here on a temporary work visa and an American (did I mentioned married?) lies to foreigners and promise them the world...Only to find out that American man was married after having a child? What choice do they have then? Leave without their baby? Or stay here illegally to stay with their child? Laura what would you do if you went to Mexico and you were that mother. What would you do?

posted by: ME ME
Thursday, July 15, 2010 at 11:33 PM

The Wong case did not deal with the child of illegal immigrants, and it would be wrong to say that the court decided such a thing. It is true that based on the arguments in Wong that it has been the policy of the United States, for over 100 years now, to consider the children of illegal aliens citizens. The duration of this practice puts it in the class of "settled law."

The only way this could change is through a constitutional amendment.

posted by: Dr. Conspiracy
Saturday, July 17, 2010 at 11:03 PM

ME ME,

They should have thought of the consequences of their actions, ie: having a child in a foreign country which they invaded. It is as simple as Laura put it. How many cases do you know of that met your scenario, LOL. Probably NONE! You are probably an illegal and therefore are grasping a straws to make your case.

posted by: SickandTIred
Wednesday, July 28, 2010 at 08:51 AM

No, I do not believe they are. I do not support anything but deportation for illegal aliens. There are mechanisms in place to enable people to legally enter this country to become citizens. I believe the entire planet should be a source of petential immigrants, not just Mexico. We do not need immigration reform which is just another way of saying amnesty. The first thing we need to do is shut the door.

posted by: Jack B.
Monday, August 2, 2010 at 08:01 PM

We are looking for an article that has links to the references on the Fourteenth Amendment. We need the same material that will be provided to the House and Senate member on their discussion.

posted by: TopAssistant
Friday, August 13, 2010 at 12:13 AM

this article isw nothing that u've learned so far. It's kind of something that we should know right now, but we don't

posted by: no name
Monday, December 6, 2010 at 01:40 PM

If they can get deported with their children, why not?
I don't agree with it, but they can actually be smart about it. The government just doesn't give them a chance to explain, but they just deport them and thats that.

posted by: no name
Monday, December 6, 2010 at 02:05 PM

ummmm this article was really boring and it made me hungry sooo yeah i gtg my moms calling me.

posted by: kevin smith
Tuesday, December 7, 2010 at 12:12 AM

In his work, "Blunders of the Supreme Court of the United States, Part 3" (online), the author, Dan Goodman, shows with cases from the Supreme Court that the political jurisdiction of the United States does not extend to the several States, but only to the District of Columbia, its territories and possessions, and federal enclaves with the several States of the Union and that one born in a State of the Union is subject to the political jurisdiction of that State and not that of the United States.

So birthright citizenship does not apply to the several States of the Union!

This article can be read at these two links:

http://www.docstoc.com/docs/81552988/Blunders-of-the-Supreme-Court-of-the-United-States-_-Part-3

http://www.scribd.com/doc/57701755/Blunders-of-the-Supreme-Court-of-the-United-States-Part-3

posted by: Warren Hathaway
Monday, September 12, 2011 at 10:20 PM