Category: Amendment XIV Section 5

JUDICIAL BLINDERS AND BIRTHRIGHT CITIZENSHIP

Judicial blinders and myopathy characterize the thinking of jurists from our lowest courts to the Supreme Court of the United States. Judges at every level, legal scholars, and legal pundits dissect and compartmentalize local, state, and national laws and the Constitution of the United States and its Amendments. This thinking elevates parts of sentences, clauses and phrases, paragraphs, Sections, Articles, and Amendments over other parts of these documents. In my opinion, these judicial blinders and myopathy have tainted juris prudence in the United States almost form the time the Constitution was ratified by “We the People,” not judges. The result has been almost continuous social and political turmoil. This thinking has also led to the idea that the decisions of judges regarding the meaning of state and national constitutions carry more weight and importance than the actual words of these constitutions. In other words, the opinions of judges, concerning the legal meaning state and national constitutions, are more important than the actual words of the state and national constitutions resulting in the concept of judicial “precedent.” Opinions of judges supersede the actual words of our constitutions which were ratified by “We the People.” Is this a judicial oligarchy?

President Trump issued an Executive Order, EO, which could end “Birthright Citizenship” and U. S. House of Representatives Republicans have introduced a bill for the same purpose. The Federal Court in Washington State has blocked implementation of this EO. That decision is being appealed to a higher Court. The judicial opinions and debate among judicial scholars and pundits are focused on these five words in the first sentence of Amendment XIV, Section 1, “subject to the jurisdiction thereof.” Amendment XIV contains 433 words. The five words being debated comprise only 1.1% of the words in the Amendment. This dissection and compartmentalization of a phrase in Amendment XIV elevates the importance of these five words over the rest of Amendment XIV, including Section 5.

Although the intent of the words, “subject to the jurisdiction thereof” was hotly debated during congressional discussion of Amendment XIV, Sen. Jacob Howard, Republican of Michigan, proposed the Citizenship Clause and stated on May 30, 1866:

“Mr. HOWARD: 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

Amendment XIV was ratified in 1868.

The Supreme Court of the United States, SCOTUS, decided in United States v. Wong Kim Ark, 169 U.S. 649 (1898) that everyone born in the United States is a citizen of the United States. This decision is the origin of the SCOTUS “precedent” for “Birthright Citizenship” contrary to the opinion of the Senator Howard who proposed the clause in Amendment XIV, Section 1. Key points of the SCOTUS majority decision in this landmark case are heighted below:

“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution, “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 . . . .

Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford . . . .

But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.”

Today’s issues related to “Birthright Citizenship,” include “Birthright Tourism” and children born in the United States to “Illegal Aliens” who entered our nation illegally. Today’s issues are far different from the citizenship of former slaves, and the citizenship of the children born in the United States to Chinese parents, forbidden citizenship under the 1882 Chinese Exclusion Act, not working for the “Emperor of China,” and “permanently domiciled” in the United States. Judicial blinders and myopathy seem to hide the Constitutional solution to the present “Birthright Citizenship” dilemma, Amendment XIV, Section 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

In accordance with Amendment XIV, Section 5, U.S. Congressman Brian Babin (TX-36) introduced the Birthright Citizenship Act of 2023 (H.R. 6612). “This legislation has 21 original cosponsors and will ensure America properly implements Section 1 of the 14th Amendment to the Constitution – ending birth tourism.” After reintroduction of this legislation in 2025, Congressman Babin said,

“This legislation ensures that automatic citizenship is granted only to children born in the United States with at least one parent who meets one of the following criteria:

  1. A citizen or national of the United States
  2. A lawful permanent resident whose residence is in the United States; or
  3. A lawful immigrant performing active service in the United States Armed Forces…..”

America’s citizenship laws should reflect fairness and respect for the rule of law,” “This common-sense legislation corrects decades of misuse and closes the loophole that incentivizes illegal immigration and exploits U.S. citizenship through birth tourism. Citizenship is one of our nation’s most precious privileges. By introducing this legislation, we are taking an important step to restore integrity to our immigration system and prioritize the interests of American citizens.”

The question that “We the People” need to ask SCOTUS and the US Congress is simple. Are the five words, “subject to the jurisdiction thereof,” contained in Amendment XIV, Section 1 more important than the fifteen words, including “by appropriate legislation,” contained in Amendment XIV, Section 5. Hopefully, our national legislators and courts will rid themselves of their judicial blinders and myopathy and realize that this is a Constitutional solution to “Birthright Citizenship” in accordance with Amendment XIV, Section 5. Consequently, in my opinion, the Birthright Citizenship Act enactment does not require a Constitutional Amendment to become the law of the land solving the current “Birthright Citizenship” issues existing in the United States.

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THE BIRTHRIGHT OR ANCHOR BABY SOLUTION: AMENDMENT XIV

 

A man and woman holding hands in the shape of heart.
Amendment XIV, Section 5, contains the solution to the anchor baby issue.

One week before the 2018 election, President Trump indicated that he would use an Executive Order to eliminate automatic citizenship for all babies born in the United States regardless of the citizenship or immigration status of the parents. However, the best solution for the birthright or anchor baby issue is contained in Section 5 of Amendment XIV. The automatic citizenship of each birthright or anchor baby is based on current application of this Amendment. The first sentence of Section 1 of Amendment XIV states, All persons born or naturalized in the United States and subject to the jurisdiction thereof (of the United States), are citizens of the United States and of the State wherein they reside (emphasis and parenthetical remark added). Section 5 of this Amendment is essential to understand the most promising means of addressing the birthright or anchor baby issue. Section 5 states, The congress shall have power to enforce, by appropriate legislation, the provisions of this article. This section gives congress the constitutional authority to correct the current application of Amendment XIV related to the birthright or anchor baby issue.

Understanding the definition of jurisdiction in Section 1 of the Amendment is necessary to discuss the application of Section 5 as a solution to the birthright or anchor baby issue. The Miriam-Webster On-Line Dictionary defines jurisdiction as, the authority of a sovereign power to govern or legislate, or exercise authority. Obviously, Section 5 gives congress the ability, jurisdiction, to formulate appropriate legislation to delineate the nature of the relationship between the legality and nature of the immigration status of the parents of a baby born in the United States to the citizenship of their baby. A simple example of such legislation could read, Pursuant to Amendment XIV, Section 5, of the Constitution of the United States of America, only persons with one parent who is a native born or naturalized citizen of the United States or a legal permanent resident of the United States are citizens of the United States and the State wherein they reside. This is a simple and unambiguous example of potential legislation that eliminates the birthright or anchor baby and anchor baby tourism issues.

The proposed legislative solution to anchor babies would eliminate one of the most powerful incentives to illegal immigration. Our immigration policy stresses maintenance of family unites or chain migration. Birthright or anchor babies enable the extended family members to move to the top of the legal immigration line. Anchor baby illegal immigrant parents, the baby’s siblings, grandparents, aunts, uncles, and cousins normally move to the top of the legal immigration list. If the extended family of each relative in the extended family of the anchor baby is added to the potential list of legal immigrants, the number of legal immigrants either grows exponentially; or the number of other immigrants is reduced when annual quotas are reached. Anchor babies are a critical part of the progressive plan to transform our nation. Consequently, the birthright or anchor baby is a powerful incentive for illegal immigration to the United States.

In my opinion, it is time to eliminate citizenship for each birthright or anchor baby.

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