Donald Trump, Birthright Citizenship, and the 14th Amendment

I thought about this yesterday. Seems to me as long as "born or naturalized in the United States" is in the 14th Amendment, then it's going to take an extremely strained reading of it to deny that children of illegal immigrants are citizens of the U.S. at birth.

I'll have to refresh my constitutional law case knowledge a bit, but this piece from Ken Klukowski, at Big Government, is pretty compelling, and could convince me that Donald Trump's on solid ground. See, "CONSTITUTION DOESN’T MANDATE BIRTHRIGHT CITIZENSHIP":

Parts of Donald Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.

The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal.

Media commentators have gotten this issue dead wrong. Fox News’s Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen.

That’s not the law. It has never been the law.

Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional?

No. The Citizenship Clause of the Fourteenth Amendment provides: “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.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.”

As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress in 1865, sending it to the states for ratification.

In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality.

The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment.

In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.

That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has.

So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.

Media confusion on this issue is puzzling, because the greatest legal minds in this country have discussed the issue. (Just none of them were put on camera to explain it.) Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship...

Still more.