by: Brent Smith at the Common Constitutionalist
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The subject of birthright citizenship is once again in the news. President Trump says he intends to sign an Executive order ending the practice. Leftists and faux-constitutional scholars are up in arms. What a shock.
CNN writes that, “Such a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: ‘All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.’”
In 2015, then candidate Trump exclaimed his desire to deport all illegal aliens. In rebuttal, Robert Tracinski at The Federalist argued that deporting birthright citizens would be a direct assault on the Constitution and “the thousand year history of English common law.”
Tracinski explained that at the time of the founding, America embraced birthright citizenship – that “for the Founders, rejecting jus soli or birthright citizenship would have meant either greatly restricting the growth and expansion of the new nation or, more likely, creating a system in which there was a large and growing subpopulation of people who were disenfranchised in the land of their own birth. An idea totally incompatible with a government based on the consent of the governed.”
He then proceeded to the 14th amendment, which is what all leftists and faux-constitutionalists use to advance “birthright citizenship.”
However, he neglects to mention that Section 1 of the 14th amendment was written to bestow citizenship on the freed slaves.
The 14th amendment, ratified July 9, 1868, reads: “Section1: 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.”
If one wishes to fully understand the Constitution and the Amendments, one must go back to the source. This is what is called original intent. By doing so one can glean not only what they wrote but the motive behind it.
Senator Jacob Howard authored the citizenship clause (Section 1) of the 14th Amendment. He defined precisely what he meant by, “and subject to the jurisdiction thereof.”
Every person born within the limits of the United States, 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 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. This has long been a great issue in the jurisprudence and legislation of this country.
His statement, “but will include every other class of persons,” meant the freed slaves.
As further proof that he did not intend for just anyone born within the United States to be a citizen, Howard added that, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”
Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “‘subject to the jurisdiction thereof’ meant not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.”
Well, it doesn’t get much clearer than that. There can be no question of Senator Howard’s intent and no question of what he meant by, “and subject to the jurisdiction thereof.”
In other words, President Trump, by his Executive Order, wouldn’t be usurping the Constitution, but merely resetting it back to the original intent of the 14th Amendment.
What a concept.