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The Fourteenth Amendment and the Birthright Clause

By G. Edward Neal

 

The issues facing the Thirty-Ninth Congress in 1865, were without question monumental in scope, historic in nature and second only perhaps to the Constitutional Convention in Philadelphia in 1787. One created a constitution and the other fundamentally changed it when it passed the Fourteenth Amendment. This amendment is considered by some as the most significant and covers so much ground it can almost be viewed as a mini constitution and has been referred to by some as the “second” constitution.

In a debate on the House floor, Representative Woodbridge said “But, sir, great responsibilities rest upon the members of the present Congress. We are not writing history, which is difficult; we are making history, which is more difficult still. …… Sir, there has never been a day since the foundation of this Government when all the candor, the calmness, the deliberation, the foresight, the wisdom of Congress has been so imperatively demanded as now.”

The amendment contains five sections that define citizenship; outlines restrictions on what the states can do; gives congress the power to enforce the restrictions; changes the method of counting population for congressional representation, which in effect removes the Three-Fifths compromise in Article 1 of the constitution and deals with the civil war debt. 

The Fourteenth Amendment is one of three amendments commonly referred to as either the reconstruction amendments or as the civil war amendments. The Thirteenth Amendment, which abolished slavery, and the Fifteenth Amendment, which prohibited voting discrimination based on race, color or previous condition of servitude, at least for males, are the other two. As one might expect with such an amendment, the Fourteenth is not without controversies and serious debates between scholars, historians and others within and outside the legal and academic communities. One of the two primary controversies, and perhaps the most notable of the two, involve the important question of immigration and the citizenship or birthright clause. The other concerns how the amendment applies to the states by incorporating the Bill of Rights and is no less important but is less known among the general public. 

When the civil war ended in 1865, the Federal Government found itself with the serious problem of reconstructing the union and re-admitting the southern secessionist states back into the union. Not the least of this problem was the need to provide citizenship and rights to the freed slaves, while having absolutely no power under the constitution to do so. Furthermore, there was little support from outside of congress, and none within congress from the democrats, to do anything with the new freemen even though according to the United States census, there were over 4 million Africans in the United States in 1860 and that number would have certainly grown by 1865.

Defining citizenship in the colonies was not a real priority or necessity but in general the British common law on the subject would probably have prevailed. In writing the constitution, John Jay, George Washington, et al were concerned with the possibility that a foreigner might become president so Article II Section 1 states that only a natural born citizen can be president. Section 8 of Article 1 of the constitution gives congress the authority to define the rules for naturalization but the constitution does not provide any further details on the definition of what and who a natural born citizen is.

Section 1 of the Fourteenth Amendment defines two types of citizens, or if you prefer, two ways of becoming a citizen, natural born and naturalization. One might very well ask why the Negro didn’t automatically become a citizen with the passing of the Thirteenth Amendment which abolished slavery. The slaves did become freedmen at that point but abolishing slavery was one thing and providing citizenship or otherwise making the Negro equal with the whites was quite another and simply a bridge too far for some. To understand the prevailing attitude toward the African Negro in both the south and the north, slave or not, we need look no further than the man 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." 

Abraham Lincoln’s view of the negro is fairly representative of all whites at the time and it is interesting to note what Massachusetts Senator, and extreme abolitionist, Charles Sumner wrote in 1834 when seeing slaves for the first time. “My worst preconception of their appearance and their ignorance did not fall as low as their actual stupidity. They appear to be nothing more than moving masses of flesh unendowed with anything of intelligence above the brutes.”

A a legal matter the Supreme Court ruled in 1857, in Dred Scott v. Sandford, 60 U.S. 393 (1857), that a negro whether slave or not, could not be an American citizen. In writing the majority opinion Chief Justice Roger B. Taney said:

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”   

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 that is an important distinction to keep in mind. Still, some type of status for the new freedmen needed to be established and there were those, such as Senator Lyman Trumbull, author of the Civil Rights Act of 1866, who obviously realized that at the very least some civil rights had to be given to the Negroes. So, he included in the act the clause 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 and was probably included, at least in part, to nullify the Dred Scott case. It is important to note the wording in the Civil Rights Act of “subject to a foreign power” and the wording in the Fourteenth Amendment of “subject to the jurisdiction” which is key in understanding the birthright clause.

While the Civil Rights Act of 1866 may have been intended to nullify the Dred Scott case it quickly became obvious that this act was not going to be effective in nullifying the black codes enacted by the southern states. To put it in perspective, under the constitution as intended by the framers, states rights trumped the central government at this point in time and therefore the central government could pass all the laws it wanted but it had absolutely no authority to enforce them over the states, or anyone else. The Tenth Amendment states that the Federal Government possesses only those powers delegated to it in the constitution and that all other powers remain with the states via the people.

At this point it would seem obvious that the only way the government was going to have any hope of properly resolving the question of what to do with the newly freed slaves was to enact a constitutional amendment giving the central government the authority to do so. In other words, “powers delegated to it in the constitution” as stated in the Tenth Amendment. To deal with these reconstruction issues Congress established a Joint Committee on Reconstruction consisting of six Senators and nine Representatives. The Chairman of the Committee was Senator William P. Fessenden of Maine and the Co-Chairman was Representative Thaddeus Stevens of Pennsylvania . The committee was generally referred to as the Committee of Fifteen or Joint Committee on Reconstruction, and most likely would be known as the Gang of Fifteen today. 

While the need for a constitutional amendment that gave the federal government the authority to enforce civil rights may have been obvious, creating such a far reaching amendment was not that easy and the committee of fifteen struggled with it to the point they were getting nowhere until they received two draft proposals from outside of congress. One proposal was from Robert Dale Owen and the other was submitted anonymously by Judge Stephen Neal of Boone County Indiana. Mr. Owen’s proposal was presented to the committee by Representative Stevens and was eventually rejected by the committee. There is actually no known congressional record of Judge Neal’s proposal, perhaps because it was submitted anonymously, but other records such as a letter from Indiana Congressman Godlove S. Orth to Judge Neal reveal it’s existence. Congressman Orth told the Judge that his proposal was passed by congress with very few changes. In writing of Judge Neal’s death, newspapers also referred to him as the author of the amendment and Judge Neal later stated in a letter that he did in fact write it.     

The first sentence in Section 1 of the Fourteenth Amendment states that “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.” While it is clear that this clause had a different meaning when it was passed by Congress, the prevailing interpretation today is that anyone born in the United States is automatically a citizen including the children of illegal aliens. A true and unbiased reading of this clause clearly indicates that to be an incorrect reading or interpretation.

In view of the continual and growing illegal immigration problem today, the question of whether the Fourteenth Amendment grants citizenship to children of illegal aliens is one in dire need of a sound and fair answer. This becomes even more important when one considers that there are those who migrate here illegally, in willful violation of United States sovereignty, only to have their children become United States citizens and thereby ensuring that the parents, criminals not withstanding, will not be deported. This phenomenon is commonly referred to as “anchor babies”. There is also what is called “birth tourism” whereby pregnant women come to the U.S. legally for the specific purpose of giving birth on United States soil to ensure their children will be considered citizens of the U.S.

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 room for debate but there is also ample evidence available to show clearly that it was not the intent of congress to include foreigners under this clause. If one believes that anyone becomes a citizen simply by being born on U.S. soil, then the question of what was the purpose of including, “subject to the jurisdiction of the United States” in the birthright clause needs to be answered. Why was that included or needed? Why not just say “anyone born on U.S. soil is an American citizen” and everyone else needs to be naturalized? The truth is, that phrase was included for a reason and one reason only but we do need to define that reason.

While it seems all we have to do is define what jurisdiction means, it is not that easy or simple but I can think of no better way to understand it than to look to the congressional records to see what the framers of the Civil Rights Act and the Fourteenth Amendment thought it meant. To do so, we can look at statements made by Senator Jacob Howard, who introduced the amendment on the Senate floor as a member of the Reconstruction Committee, and Senator Lyman Trumbull who was head of the Judiciary Committee at the time and who also introduced the Civil Rights Act of 1866. It seems clear then that we can look toward Senators Howard and Trumbull with confidence to get an excellent insight into what they were thinking and their interpretation of what the birthright clause means as well as other parts of the Fourteenth Amendment. Sen. Howard said on the floor of the Senate that

 “This will not, of course, include persons born in the United States who are foreigners, aliens, [or those] who belong to the families of ambassadors or foreign ministers”

There are those who believe that the above statement by Senator Howard merely points out that diplomatic families were not included in the birthright clause. His statement is admittedly open to interpretation, however, it appears to be more logical that he was identifying three classes of people who would not be included under the birthright clause. Foreigners, Aliens, and those in the Diplomatic Corps. This use of the words foreigners and aliens as being different entities is somewhat confusing to be sure, but they do have different legal meanings. Foreigners are, of course, citizens of another country. When a foreigner enters the United States, their legal status becomes that of an alien. So a legal alien is a foreigner who is in the United States and there are different categories for aliens such as Resident Alien, Immigrant Alien, Tourist and others that would include someone who is here on a work permit such as a Green Card. Any foreigner who is in the United States illegally, is an illegal alien. A person who belongs to a foreign Diplomatic Corps is, of course, an alien, but is also in a completely different classification. While aliens are entitled to certain rights under our laws, they can in no manner of rational thought be considered to be “under the jurisdiction of the United States”. This is not to be confused, however, with the requirement to obey our laws.

There are those who believe that all “under the jurisdiction” means is simply being required to obey the laws of the United States. That of course is a narrow and incorrect reading. For example, I am a citizen of California but when I cross the border into the state of Nevada my jurisdictional citizenship doesn’t change. I am under the jurisdiction of Nevada in that I have to comply with all their laws but Nevada has no legal jurisdiction over me, nor I to it, as a citizen to pay taxes, serve as a juror or any other legal jurisdictional matters. So, while I am in Nevada, or any other state, my jurisdictional citizenship remains with California just as jurisdictional citizenship of someone who comes here illegally, or legally, remains with the country they have just left.

In debating the issue, Senator Lyman Trumbull was very blunt and to the point about describing what was meant about being under the jurisdiction of the United States when he said

 “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 one’s country. Senator Trumbull also said in regards to American Indians, who were not granted U.S. Citizens until the American Indian Citizenship Act was passed in 1924:

“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. With the exception of countries with dual citizenship agreements, one simply cannot be a citizen of two different countries. Even the dual citizenship status is not exactly what it may appear to be. For example, this status is at best complicated in the United States and if you are eligible to become a U.S. citizen, you will probably be required to denounce your allegiance to your mother country. In the case of illegal Mexican immigrants, Mexico has made it clear that these people belong to Mexico and are in fact Mexican citizens.

When the Fourteenth Amendment was being debated in Congress, there were numerous discussions regarding what “under the jurisdiction” means in regards to Indians primarily, but also to others. In the 1860s there were still so called “wild” Indians and the concern by some was that this would include those Indians. Aside from that aspect, there was also a widely held opinion not to make any Indian a citizen so it was important to those with these concerns and opinions that Indians would not be included in the birthright clause. Senator James Doolittle was one of those who did not want to include Indians and when Senator Howard proposed the birthright clause to Section 1, Senator Doolittle said:

“I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment--”I presume he will have no objection to it--by inserting after the word “thereof” the words “excluding Indians not taxed.” “

In response to Senator Doolittle, Senator Howard said that he hoped that the amendment to the amendment would not be accepted and he went on to explain that Indians have always been regarded by our legislation and jurisprudence as being quasi foreign nations. Meaning as foreigners they would not be included under the birthright clause. While the “excluding Indians not taxed” was included in the Civil Rights Act of 1866, it was not included in the Fourteenth Amendment.There were numerous other arguments regarding Indians including arguments that there were Indians that would in fact be included as being under the jurisdiction of the U.S. as well as questions on what the definition is of a citizen.

Senator Edgar Cowan said:

 “I am really desirous to have a legal definition of “citizenship of the United States.” What does it mean? What is its length and breadth?”.

Senator Cowan covered a lot of ground in his comments, which is typical of most members of Congress, who were mostly Lawyers, and talked about the status of the Indians, Gypsies and the Mongol race. Of the Mongols he expressed a concern about immigration when he said in part:

“Recent improvement, the age of fire, has brought their coasts almost in immediate contact with our own. Distance is almost annihilated. The may pour in their millions upon our Pacific coast in a very short time. Are the states to lose control over this immigration? Is the United States to determine that they are to be citizens? ......Therefore I think before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed.”

Although Senator Cowan has obvious biases, as did most of his peers of the day, it is clear that his concern and intentions were to limit who qualifies under the birthright clause so that simply being born in the United States does not make one a citizen. While he may have addressed the issue in a little different manner, Senator Cowan’s comments were not unlike the majority of his colleagues. The question now, however, is who does the Fourteenth 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, imputed, to the child.

As part of his comments on the subject, Senator Reverdy Johnson said:

“and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”

Another way of saying that might be to say “of parents who at the time belonged to the United States as citizens”.  

In some ways, one can say that the Fourteenth Amendment was a constitutional replacement for the Civil Rights Act of 1866 and many believe that to be true. 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. The answer, however, can be found in the Supreme Court case of Elk v. Wilkins (112 U.S. 94 1884) In this case, 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 biases, can readily see that they mean the exact same thing. 

It seems clear that the birthright clause in the Fourteenth Amendment does not include people who are in this country illegally. It also does not include foreign citizens who happen to be on United States soil as legal tourists or even those who have a legal residence, who have a child while here. It also seems clear that the person the caveat “subject to the jurisdiction thereof” applies to is the parent and not the child. Therefore, there are no legal grounds under the Fourteenth Amendment to grant citizenship to a child who is born on United States soil to parents who are not United States citizens. To say otherwise is to ignore the intent and purpose of the birthright clause.

Since the current interpretation by our legal system is that anyone who is born in the United States is automatically a citizen, which as we have seen is not what the Fourteenth Amendment says, the question becomes how can that be? To put it bluntly the answer to that question is, the constitution says what the Supreme Court says it says, period. And what the Supreme Court says can vary depending on the ideological make up of the Court over the years as well as other factors. Even so, how can the court rule in a way that is different than the constitution. It is somewhat more complicated than this but the answer is primarily in how the justices interpret what a given clause or amendment of the constitution says. One can still logically conclude that the interpretation process by the justices should only account for minor differences and not change what the constitution actually says. The history of the court, however, paints a different picture.

In at least two cases before the Supreme Court involving the Fourteenth Amendment, it is clear that the court’s ruling was based on what a majority of the justices thought the amendment should say, or mean, rather than on what it says and what the intentions of the authors and congress were when the amendment was written and passed. One of these cases, United States v. Wong Kim Ark (169 U.S. 649 1897), is often used as the argument for the current interpretation of the birthright clause. The other major case was the Slaughter House Cases which most if not all legal scholars today agree that the court’s ruling and opinion was completely incorrect.   Justice Horace Gray who wrote the majority opinion in the Wong Kim Ark case cited the Slaughter House Cases in his opinion.

The Slaughter House Cases (83 U. S. 38) in 1873 is important to considered because it was the first case involving the Fourteenth Amendment, and more importantly because the 5-4 decision against the amendment set the Supreme Court’s view on this matter for the next fifty years or more. In a nutshell, the court ruled that under the “privileges and immunities” clause of the Fourteenth Amendment, butchers did not have the right to pursue their trade in New Orleans without going through a state created slaughter house monopoly.  

In writing the majority opinion in this case, Justice Samuel Miller concluded that there was a clear distinction between being a state citizen and being a U.S. Citizen, and that the privileges and immunities clause in the Fourteenth Amendment only pertained to U.S. Citizens, as it is written in the amendment, Whereas the privileges and immunities clause in Article Four, Section Two of the U. S. Constitution pertained to each of the several states in treating all citizens equally according to their state constitutions. Aside from this being a very narrowly based opinion, Justice Miller also made other comments that clearly show that he understood the framers intended purpose of the Fourteenth Amendment, but he believed that applying the amendment to the states would give too much power to the Federal Courts and to Congress.

Justice Miller, a well respected justice, was of the opinion that when something so radically changed the constitution, such as this amendment, that a different interpretation was justified and that it was the court’s responsibility to maintain a balance of power between the states and the Federal Government. He also somehow concluded that the framers could not have possibly meant to make such a change to the constitution anyway. Justice Miller made several other comments in the majority opinion, such as the amendment being designed only to grant former slaves legal equality and therefore did not apply to the general population and in another sentence he admitted that it would have to apply to all.

While the minority opinions in the Slaughter House Cases seem to have fallen on deft ears it is important to note their opinions, particularly since they obviously got it right. Justice Stephen J. Field wrote the dissenting opinion and argued that the Fourteenth Amendment protects the fundamental rights and liberties of all citizens against state interference. In other words, the Fourteenth Amendment applies the Bill of Rights to the states. Justices Bradley and Swayne wrote concurring dissenting opinions and while their comments were similar to Justice Field’s in regard to the Fourteenth Amendment, it is obvious that some of their comments were aimed at the comments of Justice Miller. Justice Swayne for example, felt it necessary to say “This court has no authority to interpolate a limitation that is neither expressed nor implied, Our duty is to execute the law, not to make it.”

The position of the Supreme Court then from 1873 to the 1920s was that the “privileges and immunities” clause of the Fourteenth Amendment did not apply to the states and therefore by extension, the Fourteenth Amendment did not apply the Bill of Rights to the states. While that position is almost unbelievable to me, the court did finally decide that maybe the “due process” clause of the amendment did apply to the states. That one part of the amendment did not apply to the states, but another part of the amendment did, while ignoring the whole of the amendment, is completely unbelievable. Today, almost every case involving rights will include the Fourteenth Amendment.

Justice Hugo Black believed that the first eight amendments should be incorporated into the Fourteenth Amendment as a whole, or by total incorporation, and argued that the words “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ seem an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.” In 1947, Justice Black argued extensively in Adamson v. California that the framer’s intent should control the Court’s interpretation of the Fourteenth Amendment and gave several examples. The court did not accept Justice Black’s total incorporation argument, however. So, while it took the court awhile to understand what the obvious purpose of the Fourteenth Amendment was, and is, they finally did so, albeit only doing so on a case by case basis using what is called selective incorporation, and then only on the narrowly based due process clause of the amendment. Some Justices, such as Clarence Thomas, now think maybe the “privileges or immunities” clause might actually apply. Scholars and Historians will no doubt continue to debate this issue and the Supreme Court may continue with it’s selective incorporation doctrine, or even rethink the whole process.

Some arguments for anyone born here automatically becoming a citizen is based on the case of Wong Kim Ark. He was born in San Francisco to Chinese parents who were legally domiciled residents of the United States at the time of his birth, but eventually returned to China. While returning from a visit to China, Wong Kim Ark was not allowed to disembark from the ship by custom officials on the grounds that he was not a United States citizen and Chinese were barred from entering the U.S. at the time. This case actually raises a lot of questions but it is very clear and understood by all that it does not involve a child born to parents who were in the United States illegally. Therefore, that fact alone renders the case useless and irrelevant to the question of granting citizenship to children of illegal immigrant parents.

While the court ruled in favor of Wong Kim Ark being a citizen, it basically ignored the Fourteenth Amendment in doing so and based it’s ruling on English common law and not the constitution. As in the Slaughter House Cases the court seems to have decided what the ruling should be and then set about trying to find law, outside the constitution, that supported that decision. These two cases clearly show how biased and incorrect Supreme Court cases can be and the Wong Kim Ark case, while interesting, is clearly and obviously not relevant to the birthright clause of the Fourteenth Amendment. Any argument otherwise is totally incorrect and erroneous.      

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 given 50 acres of land per head for importing people and for several years thereafter people migrated to the United States almost at will. So, it would seem to be a valid question to ask why we should care today how the birthright clause in the Fourteenth Amendment is practiced today. One reason we should care is the Center for Immigration Studies said in 2010 that 300,000 to 400,000 children are born to illegal immigrants in the United States every year. That amounts to as many as 1 in 10 births are to a mother who is here illegally. If we extrapolate the 2010 figure to 2015, given the obvious increase in illegal immigrants since 2010, we can guess that there are 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 Fourteenth Amendment the impact of basically what amounts to uncontrolled immigration is simply not sustainable from an economic point of view, exclusive of the social and other impacts this has as a consequence.

To their credit, there have been attempts in congress over the past few years to fix this problem but as yet, there appears to be no real desire to do so for one reason or another. It also seems unlikely that a case will come before the Supreme Court any time soon or even if the court would agree to hear it even if it did. While a Supreme Court ruling might be the best and appropriate way to resolve this issue, we know that not all rulings by the court have been correct in the past and may not be the future. It would then seem that the best method would be a constitutional amendment or perhaps an additional clause added to the Fourteenth that would be more specific or more clearly worded. Of course doing that puts it in the political environment of congress and the several states and that might be a crap shoot at best.

It may be that since the birthright clause of the Fourteenth Amendment is actually quite clear, and the current interpretation is being carried out by the executive branch, the executive branch can simply change the way current alien immigrant births are legally processed. And while it would most likely be challenged in court, the president could issue an executive order regarding births to alien parents. At the very least, an executive order should be able to cover births to illegal aliens since the Fourteenth Amendment clearly prohibits such aliens from automatic citizenship. The executive order would then simply be changing the current unofficial interpretation of the birthright clause and not changing the amendment or constitution as some have suggested.

 

   



 


 
     
 

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