Trump immigration policy violates 14th Amendment – or does it?

Trump immigration policy violates 14th Amendment – or does it?

Republican candidate Donald Trump presented details of his immigration reform policy on Sunday, on his website , and in appearances on the Sunday talk shows. His plan features building a wall along the southern border, having Mexico pay to build it, deporting all illegal aliens, tripling the number of ICE officers, detaining those apprehended while crossing the border, defunding “sanctuary cities” by revoking all federal grants, enacting criminal penalties for overstaying a visa, and ending “birthright citizenship” in the United States. While Trump’s entire plan is being portrayed as “far right” by critics, the ending of “birthright citizenship” is receiving particular criticism amid allegations that the current policy is a constitutional right granted by the 14th Amendment.

Here is the relevant portion of the Amendment:

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. (emphasis added)


This section is referred to as the Citizenship Clause, and it certainly appears from this clause that Mr. Trump’s critics are correct, that “birthright citizenship” is guaranteed by the 14th Amendment.

But, as is so often the case, it is not only the letter of the law that has bearing upon its interpretation. Nothing exists in a vacuum, not even laws or constitutional amendments. To understand this amendment, or in fact, any amendment or legal construct, one must look to the historical events that spawned it.

The American Civil War settled the issue of southern secession and emancipated those living under the oppression of slavery, but it did not necessarily change the hearts and minds of those who sought to preserve slavery as an institution. As a result, many states across the former Confederacy did everything possible to circumvent emancipation. One of these was denying citizenship to former slaves. Yes, they were now free men, the argument went, but that did not make them citizens, nor did it entitle them to the same legal rights and protections afforded to citizens. In some ways, this was practically as bad a situation as slavery, as this had the effect of putting former slaves into a stateless condition under the law. Now, they were not only deprived of bare subsistence as slaves, but they were also now deprived of the means to provide for themselves, making their economic situation even worse.

The 14th Amendment was passed in response to this dilemma, with the intent of preventing southern states from depriving the former slaves of their rights of citizenship.

There was no intent on the part of those who drafted this amendment to grant citizenship to the children of foreign persons who are born on American soil. We can see this, not only in the specific words chosen in this amendment, but also in the Congressional Record where the debates regarding this amendment are recorded. Let’s look specifically at the first line of the Citizenship Clause, and then at what those who wrote and debated those words had to say about them.

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. (emphasis added)

The phrase, “and subject to the jurisdiction thereof” is not mere legal ‘fluff’ here. The framers of this amendment meant something very specific by it, namely, that this amendment applied, explicitly and exclusively, to those who were born, not merely on American soil, but to parents who were already under the legal jurisdiction of the United States and the states themselves. This is specifically intended to exclude the children of foreign persons from this grant of citizenship.

But, as I alluded to above, we don’t have to guess at this. The author of the Citizenship Clause was Senator Jacob M. Howard, senator from Michigan. Here is what he said regarding the amendment on the floor of the senate when he offered it to the body for consideration:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, 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.” [1] (emphasis added)

Adding further clarification is Senator Lyman Trumbull of Illinois, Chairman of the Judiciary Committee, and the author of the 13th Amendment (the Emancipation Amendment). He took up the meaning of the phrase “subject to the jurisdiction thereof” specifically. He said:

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. [2] (emphasis added)

And finally, we have Senator Howard’s response to Senator Trumbull. This should remove all doubt:

“I concur entirely with the honorable Senator from Illinois, in holding 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. [3] (emphasis added)

The conclusion is, or at least ought to be, unmistakable. The 14th Amendment was intended, just as all the constitutional amendments passed in the wake of the Civil War were intended, specifically to liberate the former slaves and guarantee to them equal rights and protections under the law within every state of the union, and they were not intended for any other purpose. To construe that the amendment has any other meaning or purpose amounts to historical and legal revisionism.

So, from a constitutional perspective, and thus the perspective of the Abigail Adams Project, Mr. Trump’s proposal to end “birthright citizenship” is not only not a violation of the 14th Amendment, but would actually serve to re-establish its intent.

Footnotes:

[1] Congressional Globe, 39th Congress (1866) pg. 2890

[2] Congressional Globe, 39th Congress (1866) pg. 2893

[3] Congressional Globe, 39th Congress (1866) pg. 2895

Special thanks to P.A. Madison for providing relevant references for this article in his article which can be read here.

The Abigail Adams Project website (abigailadamsproject.com) is offline for renovations

In the meantime, we’d like to introduce you to Constitution Academy, which we launched this spring. Constitution Academy (constitution.academy) is intended to be a resource for all things relating to our republic’s founding documents. We’re excited to embark on this aspect of the project and to launch it as a resource and a companion website for the Abigail Adams Project.

The Abigail Adams Project introduces Constitution Academy

In pursuit of one of its foundational goals, the Abigail Adams Project is very pleased to announce the launch of Constitution Academy.

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