ILLEGAL IMMIGRATION - Birthright Citizenship | Eastern North Carolina Now

    Reference: Edward J. Erler, "Trump's Critics Are Wrong About the 14th Amendment and Birthright Citizenship," National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

    V. SUPREME COURT CASES (addressing the 1 Amendment's "Citizenship Clause" - particularly the "subject to the jurisdiction thereof" clause)

    The Supreme Court has addressed the Fourteenth Amendment's "subject to the jurisdiction" language in two important cases. None of these cases definitively resolve our question. But they offer hints.

    Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because the Constitution's text and history suggest that the citizenship standards for tribal Indians and foreigners are different. However, the Elk case does tell us that:

    * "Subject to the jurisdiction" in the 14th Amendment has a specialized meaning, different from the common meaning of "within a given territory and therefore subject to a court's order," as, for example, appears in the 13th Amendment.

    * This meaning is connected to the concept of "allegiance," a legal term traditionally used to determine whether a person is a natural born citizen.

    * For deciding whether a child born in the U.S. receives citizenship under the 14th Amendment, the relevant issue is the parents' allegiance when the child was born. The parents' or child's later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.


    Two justices dissented from the holding in Elk. They accepted the connection between "jurisdiction" and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state's political community. Their version of allegiance thus depended partly on a person's intent.

    United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.

    The most important lesson of Wong was this: The Constitution's version of "allegiance" was the version we inherited from Great Britain in 1776-not versions prevailing in other countries or under international law.

    As modified by Parliamentary statute, the British version of allegiance was as follows:

    * Birth in a country (or on a country's ships) normally creates a "natural allegiance" to that country.

    * A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person's status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.

    * Foreign residents and visitors generally are in "local allegiance" to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.

    * To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.

    Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.

    In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the 14th Amendment.

    Reference: Rob Nateson, "An Objective Guide to Birthright Citizenship," Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/

    VI. The Validity of the 13th and 14th Amendments (from Douglas H. Bryant's law review article "Unorthodox and Paradox: Revisiting the Fourteenth Amendment")


    When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State's proclamation that the13th Amendment had been ratified seemed to suggest the recognition of the validity of the Southern government. Congress, however, had no intention of making such recognition. When the 39th Congress convened, Republicans refused to seat any Southern representative, and would later declare, "no legal State governments . . . exist in the rebel state." The Southern states were refused representation in Congress throughout the entire period in which the 14th Amendment was proposed and ratified.

    There can be little doubt that, were the Southern delegations admitted into the Congress, they would not have supported the 14th Amendment. Of course, this is the exact reason the Republicans excluded them. The Southern delegations, from the Republicans' viewpoint, seemed to be the same group of rebels who had started this crisis in the first place. Southern voters elected "no fewer than nine Confederate congressmen, seven Confederate state officials, four generals, four colonels, and Confederate Vice President Alexander Stephens." Furthermore, the abolition of slavery would do away with the three-fifths method of determining population, which would actually give the South more power in Congress than it had before the Civil War.

    Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the 13th Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators. The final vote on the 14th Amendment in the House was 120-32, with 32 abstentions. The tally was far greater than the necessary two-thirds. If the excluded Southern representatives' votes were added to the negative column, however, the two-thirds would not have been achieved. Similarly, if the twenty-two Southern senators' votes had been added negatively to the Senate tally of 33-11, with 5 abstentions, then the vote would have ended in a tie.

    It is here, then; where the first problem with the proposal of the 14th Amendment arises. If the Southern governments were legitimate enough to ratify the 13th Amendment, how is it they could be denied representation in Congress? The Constitution seems to give the Republican Congress an out. It provides in Article I, Section 5 that: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business." Thus the Constitution contemplates a legitimate congress that excludes some of its members, and allows such an exclusionary power on a majority vote.

    But there is still a problem in respect to how Congress exercised this exclusionary power. The Qualification Clause gives Congress the power to serve as a "Judge" of its members' qualifications. In this case, however, Congress made no inquiry into the qualifications of any particular Southern senators or representatives. Instead of rejecting particular men, Congress excluded all the Southern delegates, regard- less of their qualifications.

    However, even a loose reading of the Qualification Clause is limited by other Constitutional provisions. Article I states that "each State shall have at Least one Representative" and Article V asserts that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." It appears, then, that the Constitution does not allow the Qualification Clause to serve as a textual warrant to defeat a state's claim of representation. Congress would have to find some other way to deny Southern representation and still be a Constitutional "Congress" for the purpose of Article V.

    The Republicans did have another justification for excluding the South from Congress. Article IV, Section 4, states that "the United States shall guarantee to every State in this Union a Republican Form of Government." The Southern constitutions of 1865 looked very similar to their antebellum constitutions, with the exception that the 1865 documents had provisions outlawing slavery. The South's antebellum constitutions, which protected slavery, had never been found to be un- republican and, in fact, Congress had on several occasions rejected abolitionist arguments that the Guarantee Clause barred the admission of new slave states. It seems very odd, then, to promote the idea that the Southern governments had rendered themselves unrepublican by freeing the slaves.

    This argument supports Secretary of State Seward's proclamation that recognized the South as having legitimate state governments still in the Union with the ability to ratify or reject proposed amendments. But, at the same time, there was nothing to keep the Republicans from advancing a new and revolutionary interpretation of the Guarantee Clause. There had never been a case of a state swapping a republican form of government for an unrepublican version, and thus there had never been any prior reason for Congress to question the validity of a government under the Guarantee From a modern point of view, at least, there seems to be quite a good argument for declaring Southern governments "unrepublican."

    No Southern government had granted blacks the right to vote, and some radicals in Congress argued that "republican government required not merely that blacks be free but that they be enfranchised." This argument was hard for many Republicans to accept. For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one- half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.

    Further, if black suffrage was required, did a republican government also require women's suffrage? All this lead many Republicans to become uneasy over the possibility that the federal government might soon have some permanent role in structuring state governments. Therefore, in preparing the document justifying Congress's power to exclude the Southern states and still propose the 14th Amendment, the Congress, while still using the Guarantee Clause as its legal basis, looked not at the substance of the Southern constitutions, but on the presidential process of setting up the state governments.


    In determining whether the Guarantee Clause may properly serve as a basis for constitutionally excluding Southern representation, it must be noted that, with two exceptions, everything in the Constitution, including the Guarantee Clause, may be changed or eliminated through amendment. The first exception expired in 1808. The clause in Article V, however, which states that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate," may not be altered and is forever a part of the Constitution. If this clause was so important to the framers of the Constitution that they declared it unamendable, can it really be trumped by the Guarantee Clause?

    Even if one agrees with the reasonable argument that the South's governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the 14th Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the 14th Amendment was constitutionally proposed, it necessarily admits that the 13th Amendment was never ratified. How could an unrepublican and thus unrecognized government's vote count towards the ratification of the 13th Amendment?

    One other matter clouds the proposal of the 14th Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two-thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the 39th Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the 14th Amendment gain its requisite two-thirds majority in the Senate.

    While the proposal of the 14th Amendment seems trouble- some, the ratification process is even more perplexing and irregular. Once the Amendment had been "proposed" in Congress it was sent to all existing state governments, North and South. Here lies an interesting inconsistency: If there were no legitimate republican governments in the South, why did Congress send these illegitimate governments the proposed 14th Amendment? It seems the very fact that Congress sent the 14th Amendment to the South for ratification serves as a tacit endorsement that the Southern states had legitimate governments, or at least that these states were "still full-fledged members of the Union."