THE QUESTION OF BIRTHRIGHT CITIZENSHIP. by Steve Byas--JBS
Many today claim that any person born on U.S. soil is automatically a U.S. citizen. Is this what the Founders, and the authors of the 14th Amendment, intended?
Vice President Kamala Harris is not a natural-born citizen of the United States and is thus ineligible to ever serve as president of the United States, or even to continue in office as vice president. That is the contention of a lawsuit filed in federal court in California by the Constitution Association, Inc. and presently under review by that court. Regardless of the outcome of that case, it is almost certain that the losers will appeal, and because of its importance, it will eventually reach the U.S. Supreme Court.
The case was filed while Harris was a candidate for vice president, with the argument in the brief with the court asserting that “at the time of the birth of [Kamala] Harris, the Father of Harris was in the United States as a temporary visitor on a student visa and was not otherwise a lawful permanent resident, and was not, and never has been a citizen of the United States.” The Constitution Association (CA) further argues that Harris’ mother, Shyamala Gopalan, was a “citizen of India at the time of the birth of Harris, the mother of Harris was in the United States as a temporary visitor on a student visa and was not otherwise a lawful permanent resident, and was not a citizen of the United States, however, many years after the birth of Harris, the mother of Harris did apply and was granted United States citizenship.”
Who Is a “Natural Born Citizen”? What does the Constitution itself say regarding the requirements to be president or vice president? Article II, Section 1, Clause 5, states:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
Steve Byas is a university professor of history and government and the author of History’s Greatest Libels. AP Images the Question of Birthright Citizenship Eligible? Is Vice President Kamala Harris constitutionally eligible to serve in her current position or as president?
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One can safely assume that if Native Americans were excluded from citizenship because they were not under the jurisdiction of the United States, despite their families being on American soil for several generations, a person born of parents physically present in the United States on a student visa would not be considered a citizen, either.
In its court filing, CA noted that there is considerable “confusion” over the meaning of “natural born citizen,” and that the Supreme Court has never adjudicated the question. Rather than meet CA with constitutional arguments, opponents of the lawsuit have chosen to charge the plaintiffs with r****m and of being “conspiracy theorists.” The plaintiffs argue that the Constitution requires the president of the United States (or the vice president, by extension) to be a “natural-born citizen.” While the Framers of the Constitution did not define “natural-born citizen,” the plaintiffs note that they “clearly required different levels of allegiance” for president and vice president than they required for holding office in the House of Representatives (a minimum of seven years as a U.S. citizen), or in the Senate (a minimum of nine years as a U.S. citizen). There is no natural-born citizen requirement in the Constitution to hold office in either house of Congress, but there is for president or vice president.
They quote famed 19thcentury Supreme Court Justice Joseph Story, who wrote in his Commentaries on the Constitution that the natural-born citizen requirement “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for office; and interprets a barrier against those corrupt interferences of foreign governments.”
There is little doubt as to why the Framers inserted the requirement of being a naturalborn citizen into the Constitution, rather than just any sort of citizen, such as a “naturalized” citizen — a person who is a foreigner who goes through a process to become a citizen of the United States. They wanted there to be no doubt as to the undivided loyalty to the United States of the chief executive of the U.S. government — the president — who serves as the commander in chief of all armed forces of the country.
Often passed over in this consideration is the additional requirement that a person have resided in the United States for at least 14 years before being eligible to serve as president. In short, a person could be a natural-born citizen of the United States, but if he had lived little of his life inside the borders of the country, he may have become divided in his loyalties. The requirement that a person be a natural-born citizen is not intended as a slight to naturalized citizens — many of whom are excellent citizens. The purpose of the requirement that a person be natural-born and have lived in America for at least 14 years is to decrease the chances that a person serving as president would put loyalty to any other country above that of the United States.
Over the course of American history, the issue of whether a person is a natural-born citizen, and is therefore qualified to serve as president (or vice president) of the United States, has arisen. For example, Chester Alan Arthur was elected vice president in 1880, on a Republican Party ticket led by James Garfield. Since Arthur’s father was a traveling Free Will Baptist minister who often crossed the border into Canada to preach, it was uncertain if Chester Arthur was born on the soil of the United States or was born in Canada, while his father was preaching there. In the end, the matter was dropped.
Another instance that this question arose involved Senator Barry Goldwater of Arizona, the Republican nominee for president in 1964, who was born in Arizona while it was still a territory, not a state. But U.S. territories have always been recognized as part of the United States, and both of Goldwater’s parents were U.S. citizens. Mitt Romney’s father, George, was born in Mexico while his parents were Mormon missionaries there, and John McCain was born while his father was stationed in the Panama Canal Zone.
But, in all of these cases, it was held that clearly both parents of these men were U.S. citizens. Historically, citizenship has been a matter of who one’s parents are (especially the father), not The author: Senator Jacob Howard (R-Mich.) authored the “Citizenship Clause” of the 14th Amendment. He argued for including the language “and subject to the jurisdiction thereof.” One can safely assume that if Native Americans were excluded from citizenship because they were not under the jurisdiction of the United States, despite their families being on American soil for several generations, a person born of parents physically present in the United States on a student visa would not be considered a citizen, either. where one was born. Bible readers might recall that the Apostle Paul was a Roman citizen because his father was a Roman citizen, not because he happened to be born inside the Roman Empire.
The intent of the Founders was not to diss those who would come to the United States from other places on the globe. They specifically expected that would happen. Their concern was the fragility of liberty in world history, and they desired that the chief executive of the government — who would be in command of the armed forces of the country — be unquestionably loyal to the United States. While it would not ensure such loyalty, a person who was a citizen at birth would be less likely to be infected with the political doctrines of the Old World — the Old World from which Americans had seceded in 1776.
It is clear that the Founders intended that a person who would become president or vice president be a citizen at birth, and not a naturalized citizen. But is a person automatically a citizen just because he or she is born on U.S. soil? In other words, if foreign nationals have a child in the United States, is that child a U.S. citizen? This is the real issue of whether or not politicians such as Kamala Harris are actually eligible for the office of the presidency. Many Americans today believe in the doctrine of birthright citizenship — the idea that being born in America automatically confers citizenship. But is this what the Founders intended?
The 14th Amendment and “Birthright Citizenship” The 14th Amendment, adopted on July 9, 1868, is often cited as making someone a U.S. citizen simply because that person happens to be born on U.S. soil — i.e., “birthright citizenship.” Actually, the 14th Amendment says no such thing. It requires that a person be born under the jurisdiction of the United States in order to be a U.S. citizen at birth. Section 1 of the 14th Amendment states: 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.
When interpreting any amendment to the Constitution, one should read it in its historical context. Each amendment was added to the Constitution to address some perceived problem that had arisen since the adoption and ratification of the original language in 1789. The 14th Amendment is no exception. With the abolition of s***ery (via the 13th Amendment), the legal status of millions of former s***es was a serious question, specifically their citizenship status, along with all of the legal rights they would have if they were citizens.
The 1857 Dred Scott ruling of the U.S. Supreme Court had held that s***es could not be citizens of the United States. Considering that a person was considered a citizen if one’s parents were citizens (this is how most countries in world history have determined citizenship), none of the former s***es could be considered citizens. To address this problem, Congress initially enacted the 1866 Civil Rights Act to make all former s***es’ citizens of the United States, allowing them to enjoy all the benefits of citizenship, such as legal rights. But concern over the constitutionality of the Civil Rights Act of 1866, combined with the fear that a future Congress might opt to repeal the law, led to the adoption of the 14th Amendment.
To accomplish their purposes, the amendment’s authors decided that any person born in the United States, and not subject to the jurisdiction of any other country, would be a citizen at birth. This would be in addition to those who gained birthright citizenship by having parents who were U.S. citizens. One could make the argument that this amendment is now superfluous, as all persons it applied to in the 1860s are now dead. After all, the minor children of naturalized citizens become naturalized citizens themselves when their parents’ become citizens. The authors of the 14th Amendment did not, however, intend to make the children of foreign diplomats, tourists, and those here on student visas citizens simply by virtue of having been born on U.S. soil.
Regarding American Indians, the amendment’s authors maintained that they could not be citizens at birth, because they were not under the jurisdiction of the United States, but rather were subject to the jurisdiction of their tribal Making them citizens: The purpose of the 14th Amendment was to grant citizenhsip to former s***es — they were born in the United States and subject to its jurisdiction. It was never meant to apply to every person born on U.S. soil, no matter the nationality of the parents. Of course, many became citizens via naturalization, or later laws passed by Congress.)
In fact, the U.S. Supreme Court ruled on this very issue in the 1884 Elk v. Wilkins case. John Elk, a Winnebago Indian, was born and raised on an Indian reservation but later left to live with w****s and renounced his tribal allegiance. Upon registering to v**e on April 5, 1880, he was denied by City of Omaha fifth ward registrar Charles Wilkins. Wilkins’ reasoning for refusing Elk’s registration was that Elk was born on an Indian reservation, and thus was not subject to the jurisdiction of the United States — and not a U.S. citizen. He would have to be naturalized. The Supreme Court ruled in Wilkins’ favor, i.e., that Elk was not a U.S. citizen. According to the Court:
The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393), and to put it beyond doubt that all persons, white or black, and whether formerly s***es or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73; Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
One can safely assume that if Native Americans were excluded from citizenship because they were not under the jurisdiction of the United States, despite their families being on American soil for several generations, a person born of parents physically present in the United States on a student visa would not be considered a citizen, either. If American Indians in the 19th century were not under the jurisdiction of the U.S. government, then how could people from Europe or elsewhere meet this requirement? The short answer is that they can