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The

Fourteenth Amendment to the U.S. Constitution

According to Edward Neal

 

The prevailing interpretation of the birthright clause in section 1 of the 14th amendment is that anyone born in the United States is automatically a citizen,  including children of illegal immigrants. In view of the continual and growing illegal immigrant problem today , the question of whether the 14th amendment grants citizenship to children of illegal parents is a question in dire need of a sound and fair answer. This becomes even more important when you consider that there are those who migrate here illegally only to have their child become a United States citizen which by its nature, ensures that the parent will not be deported. This is commonly referred to as having “anchor  babies”.  There is also what is called “birth tourism” whereby a pregnant women comes here legally for the specific purpose of giving birth on United States soil.

Although it seems clear that giving citizenship to anyone born on United States soil is not what was intended under this amendment, those who claim it does do so mainly on their reading and interpretation of  what “subject to the jurisdiction of the United States” means. This phrase does, admittedly leave some room for debate on its meaning but there is also ample evidence available to clearly show that it was not the intent of congress to include everyone under this clause.  To fully understand it, however, one does have to consider many things such as , the original intent of the 14th amendment, the times in which it was written, why it was needed, other related documents including court cases, etc. So although it seems all we have to do is define what jurisdiction means, it is not that easy or simple.

To understand what “subject to the jurisdiction thereof” meant according to the congressmen involved with the 14th amendment and the Civil Rights Act of 1866, we can look at statements made by Senator Jacob Howard, who introduced the amendment on the Senate floor,  and Senator Lyman Trumbull who was head of the Judiciary Committee at the time. Although what Sen. Howard said  is somewhat debatable due to grammatical reasons, the basic meaning seems clear:

“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”

 However one may debate what this says, in particularly how he meant “aliens” it is clear that he is saying that the citizenship clause does not include foreigners or more specifically those who are citizens of another country. This view is further strengthened by statements made by Senator Trumbull:

“What do we mean by  subject to the jurisdiction of the United States? Not owing allegiance to anybody else. That is what it means”

This clearly means not being a citizen of another country since it is understood by all that citizenship, by its definition requires allegiance to ones country. Senator Trumbull also said in regards to American Indians:

“it cannot be said of any indian who owes allegiance, partial allegiance if you please, to some other Government that he is subject to the jurisdiction of the United States.”

One can by extension and meaning apply Senator Trumbull’s statement to those who are in the United States illegally since an illegal alien is without question and definition a citizen of another country and therefore owes at least some amount of allegiance to their country if not complete allegiance. One simply cannot be a citizen of one country and owe allegiance to another country under the basic definition of citizenship.  In the case of illegal Mexican immigrants, Mexico has made it clear that these people belong to Mexico and are in fact Mexican citizens.

The question now, however, is who does the 14th amendment refer to as being subject to the jurisdiction thereof, the parent or the child?  If the child is a United States citizen at birth, how can it be subject to a foreign power or be expected to have any allegiance to any country or anything? The only logical conclusion, and one accepted by the majority of people, or at least questioned by few, is that it refers to the parent being subject to a foreign power and by extension, or imputed, to the child.

It seems perfectly clear at this point that the birthright provision in the 14th amendment does not include citizens of another country and certainly does not include illegal aliens if you will. It also seems clear that the person the caveat ‘subject to the jurisdiction thereof” applies to is the parent and not the child.

To fully understand the Fourteenth Amendment we need to take a brief journey into history  to see why the amendment was needed in the first place, which then helps to understand its purpose and goal. One also needs to understand the political environment of the time and that the immigration issues of the 1860s, which basically didn’t exist,  has little or no relation or comparison  to the immigration issues of today.

First and foremost, we need to understand that the status of the freed Negro in the late 1860s America is the primary fuel that drove legislation regarding rights and citizenship in this time frame. If we begin in 1857, prior to the 13th amendment which abolished slavery, we see that the Supreme Court in the Dred Scott case ruled that Negros, slaves or not, were not and could not be citizens of the United States. Since the 13th amendment in 1865 abolished slavery why wasn’t the freed Negro/slave now considered a citizen like everyone else? The political environment in 1865 was such that any attempt to include citizenship and other rights including due process, for the freed slave would have doomed the 13th amendment from the start. So, basically all the amendment does, which is no small matter, is outlaw slavery. The Negro is now free but he is not a citizen and in reality has no rights.

To fully understand the prevailing attitude toward the African Negro we need look no further than the man who who would become known as the "Great Emancipator", Abraham Lincoln. In his fourth debate with Stephen Douglas in 1858, Lincoln said:

"I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races, [applause]-that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race."

In the same debate, Lincoln also said:

"He shall have no occasion to ever ask it again, for I tell him very frankly that I am not in favor of negro citizenship." 

There were other northern newspaper editorials and prominent men of the day that basically espoused the same sentiment toward negroes. What this illustrates is that being against slavery and considering the negro as anything other than inferior and subordinate to whites, was not the same thing and is an important distinction to keep in mind. There were those, and possibly even those whose views were similar to Lincoln's and others, that also realized, however, that any realistic solution to the African Negro situation had to include citizenship. 

In an attempt to fix this problem the Civil Rights Act of 1866 was passed and it said that all persons born in the United States are declared citizens, excluding Indians who are not taxed, and those who are subject to a foreign power. This act is the first attempt to define what constitutes a U.S. citizen but it did not have constitutional power and did not include provisions for enforcing or otherwise providing for equal rights and due process throughout the states. The southern states basically enacted what is called Black Codes which essentially prohibited the Negro from enjoying the basic rights of a citizen.

It was now obvious that if you wanted to make the freed slaves citizens, additional legislation would be needed and it would have to address the Black Code laws enacted particularly by the southern states, include due process provisions and enforcement provisions. etc. To meet this criteria it was also obvious that what was needed was a constitutional amendment. Thus, the Fourteenth Amendment to the constitution was born.

In some ways one can say that the Fourteenth Amendment was a constitutional replacement for the Civil Rights Act of 1866. It is therefore not surprising  that the language concerning birthright was very similar in both. But since they are somewhat different did they actually mean the same thing. There are those today who say it is worded differently because the meaning is different. But it seems obvious that they are either not aware of or perhaps simply ignore the  fact that these two documents were written by two different legal minds.  The author of the Fourteenth Amendment, Judge Stephen B. Neal, may have intended to mirror what the Civil Rights Act said, “and not subject to a foreign power”  but thought the term “subject to the jurisdiction” covered this issue better.  

 We can also look at a Supreme Court case, Elk v. Wilkins, where the court took note of the language in the Civil Rights Act and concluded that the language used in the Fourteenth Amendment was rephrased from the Civil Rights Act and therefore the courts could look to the Civil Rights Act to resolve any ambiguities in the meaning of the Fourteenth Amendment. According to this conclusion, the word jurisdiction in the Fourteenth Amendment can also be translated as meaning,  and not those who are subject to any foreign power. Even without this court’s conclusion, anyone who looks at “subject to a any foreign power, and “under the jurisdiction”, without applying any external agendas or bias, can readily see that they mean the exact same thing.

There are, without a doubt, many other points and counter points one can make or add to this, including court cases that seem to contradict one another. But the primary issue today concerns whether or not illegal immigrants are included in the Fourteenth Amendment and if so, do we the people want it to be so. If the amendment does not include illegal and/or foreign citizens then we need to change how it is being interpreted by the Executive Branch of our government. While I have used the term illegal immigrants here the truth is that term and others such as undocumented immigrants only tend to confuse the issue. A truer term would be illegal aliens or illegal foreigners. The term illegal in itself should be sufficient to exclude anyone it applies to from the Fourteenth Amendment.

It seems clear to me, and many others, that the birthright clause in the Fourteenth Amendment does not include, at the very least, people who are in this country illegally. It also seems clear to me that it does not include foreign citizens who happen to be on United States soil as legal tourist or whatever, who have a child while here.

The United States is without question a country of immigrants and in our early history we in fact needed large numbers of immigrants to populate and farm this land.  In the Virginia Colonies, people were in fact given 50 acres of land per head for importing people. And for several years thereafter people migrated to the United States at will. So, it would seem to be a valid question to ask why we should care today how the birthright clause in the 14th amendment is practiced.  

The Center for Immigration Studies, which I hereby give credit to for some of my research on this subject, said in 2010 that every year 300,000 to 400,000 children are born to illegal immigrants in the United States.  That amounts to as many as 1 in 10 births are to an illegal mother.

 If we extrapolate the 2010 figure to 2015, given the obvious increase in illegal immigrants since 2010, we can guess that there is probably close to a million births or more per year to illegal aliens.  If you realize that these children and their parents now have access to welfare benefits, and ultimately initiate chain migration of the child’s extended family and in-laws, it becomes obvious that no matter how one interprets the birthright clause of the 14th amendment the impact of basically what amounts to uncontrolled immigration is simply not sustainable from an economic point of view not to mention the social as well as other impacts this has as a consequence. We can either continue to argue the finer points of the 14th amendment, which has been done for years now with no results, or we can simply admit we have a problem and fix it.

One should also understand that this current interpretation of the birthright clause is actually  being carried out though the Executive branch of our government without any say or input by “we the people” as represented by Congress. To their credit, there have been attempts in congress over the past few years, even by Senator Harry Reed, to fix this problem but as yet, there appears to be no real desire to do so for one reason or another.  So, there is basically nothing new here but the longer the problem goes unresolved, the greater the potential is that it could undermine and eventually destroy this great nation.


 

It seems to be common knowledge, even by so called scholars,  that the 14th amendment was written by the Committee for Reconstruction or as thought by some, Senator Jacob Howard who introduced it in the Senate. For the record, however, the 14th amendment was written by Judge Stephen B. Neal. He doesn’t often get credit for it, perhaps due to his unassuming nature and personality.  A biography in the Boone County Genealogy actually tells us why Judge Neal has not gotten the recognition he deserves for the 14th amendment and other important issues he was involved with:

 “In the judicial forum, in the halls of legislation, in the church, he has been unobtrusive, carefully avoiding attracting attention, and, as far as practicable, seeking no public notoriety, but carefully seeking to be unknown. The most important political act of his life remained unknown for twenty years after its accomplishment, except to a few confidential friends who were enjoined to secrecy.”

The last sentence of course refers to him being the author of the 14th amendment. Judge Neal sent his draft of the amendment to Representative Godlove S. Orth who was a friend and former colleague in the Indiana State Legislature.  I would suspect that Congressman Orth was one of those who was enjoined to secrecy as to the author of the draft.

With the exception of the birthright clause, which may have been added by Senator Jacob Howard or perhaps Congressman John Bingham,  and one section concerning the amendment’s enforcement that was added by congress, the draft was passed as written. While the birthright part of the 14th amendment in Section 1, is the most talked about and discussed today among most people, it is absolutely amazing how much ground and legal rights are covered in this amendment. It seems to me that anyone who not only could write such a document but have it passed by congress as well, deserves our respect, appreciation and recognition.

I am obviously extremely proud to be a gg-nephew  of Judge Neal and have and will continue to  promote his accomplishments where ever and however I can even though it is obvious that he might not appreciate me doing so. Rest in peace Uncle.

   



 


 
     
 

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