Is there such a thing as an illegal birth? The short answer is no because no one has actually challenged the issue directly to the Supreme Court.
Are children born in the United States of an illegal alien mother born legally, or illegally? Is there such a thing as an illegal birth? Shouldn’t we have definitions for a legal vs. illegal birth? Notwithstanding the fact that the births of children of mothers present in the United States “illegally” costs taxpayers billions of dollars directly and indirectly each year; the fact that these illegal (?) infants are conferred citizenship continues to provide serious motivation for the women of Mexico and other nations to seek entry into the United States illegally. You would think that the American people, and its political leaders would have modified the language of the applicable laws years ago to stop the insanity. I’m not suggesting here that the children born in the United States of a mother present in the country illegally be denied health or other services. I am suggesting that citizenship should never have been automatically granted and especially in light of the fact that the federal government has done such a shameful job for the last twenty-eight years of protecting the borders of the United States from illegal entry. There is no doubt that absent the past and current application of the 14th Amendment “birthright = citizenship” clause, the motivation of pregnant mothers to enter the United States illegally would have been, and would be dramatically reduced.
The 14th Amendment to the U.S. Constitution continues to rain havoc on the very people it was intended to protect. You know, this is the Amendment that has given citizenship to the children born in the United States for the last 150 years. That has included the insane notion that children of illegal aliens are included. Do you believe that the original framers of the 14th Amendment intended for the citizenship clause to include those children born from illegal aliens? How did such an interpretation come about?
Actually, the first unintended culprit in this mess was the Civil Rights Act of 1866. The salient portion of the Act provides:
“[t]hat 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; . . .”
The Civil Rights Act of 1866 was passed by Congress a couple years earlier than the 14th Amendment. Why the “Citizenship Clause” was included in the 14th Amendment is not entirely clear when the Civil Rights Act of 1866 was already the law of the land. It is argued that Congress later became concerned that unless this law was language in a Constitutional Amendment, the Act could be repealed by a later session of Congress.
At the time the Act was passed, there was a question as to whether persons born in the United States and therefore deemed to be “federal citizens” would be citizens of the States in which they resided. I note that the language of the Act provides that persons born in the U.S. not subject to any foreign power are citizens compared to the language of the 14th Amendment which provides in Section 1 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.” I suspect that interesting arguments could be made regarding the significance of both phrases. What did it, or does it mean for a person to be born in the United States to be “subject to any foreign power”? Is the child born of an illegal alien subject to a foreign power? On the other hand the language in the 14th Amendment states that a person born in the United States AND subject to the jurisdiction thereof is a citizen. So the question that comes to mind is, when would a person being born in the United States not be subject to its jurisdiction? Under what circumstances would such infant, being born in the U.S., not be subject to the jurisdiction? Are illegal aliens subject to the jurisdiction of the United States? If no, then how could their children be subject to the jurisdiction of the United States other than by de facto because they were born in the United States. If yes, parents are subject to the jurisdiction of the United States regardless of the fact that they are present illegally, does their presence and being subject to the jurisdiction automatically confer jurisdiction over the child born here illegally?
The aforementioned differences in the language became moot by way of the fact that new more inclusive language was provided for in the Enforcement Act of 1870 which obstensibly re-inacted provisions of the Civil Rights Act of 1866. The Enforcement Act of 1870 states:
“Sec. 16.And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens,. . .”
So because the more inclusive language of simply being “within the jurisdiction” (geographically?) of the United States grants equal protection to all such persons in all States and Territories, perhaps it was an easy leap of logic for the courts to interpret this provision and the language of the 14th Amendment to include the children of “aliens” as having citizenship status. However, this is not exactly what happened.
to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Therefore, Elk was deemed not have citizenship status because at the time of his birth, he was not subject to the jurisdiction of the United States. Eighteen years later, the Court in United States v. Wong Kim Ark, a permanent domicile and residence in the United States and are carrying on business in the United States. . .”) becomes a citizen at the time of birth pursuant to the 14th Amendment! Here is where the Court more or less decided that the two above referenced differences in the language of the 14th Amendment and the Civil Rights Act of 1866 were really not different at all. Following this case, certainly if a non-citizen mother established a (legal?) permanent domicile and residence and carried on a business (for some unstated period of time) gave birth to a child in the United States, said child was a U.S. citizen. What is interesting is from a jurisprudence point of view, is that only two years earlier, in Plessy v. Ferguson, 163 US 537, 543 (1896), the Court expressly recognized in the opinion that the 14th Amendment’s actual primary purpose was to:
establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States,”
The Plessy Court did not intimate that the Amendment’s purpose was to grant automatic citizenship to every child born in the United States regardless of the parents’ legal status while being present in the United States.
It is quite clear that in the Wong Kim Ark case, the parents were here in the United States legally, or conversely one can not argue that Wong Kim Ark’s parents were “illegal aliens”—a concept which did not exist at the time. It is also quite clear that the Court in Wong Kim Ark included conditions in its holding that Wong Kim Ark was a citizen. From the Wong Kim Ark case it appears obvious if a child
- is born in the United States
- of parents who, at the time of his birth, are subjects of a foreign power
- whose parents have a permanent (legal) domicile and residence in the United States
- whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject
becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution. However, if the parents are not here legally (thus without a “permanent domicile”) the residence component is not relevant. What is quite remarkable is that Congress and our Executive Branch of government have ignored this conditional language in the Court’s opinion and by assumption and/or legal fiction concluded that the birthright citizenship applies to the infants of illegal aliens!
After writing this article, I came across a counter position on the issue written by a “law professor.” His logic was that the 14th Amendment was always intended to be applied to the birth of children from illegal aliens because it was intended to grant slaves born in the United States citizenship post Civil War. What? He actually opines that because slaves were brought here (against their own will obviously) from Africa illegally the Amendment has always been intended to be applied to “illegal” immigrants. How ludicrous. An epic failure to rationally differentiate between the people brought here against their will via kidnapping of people from Africa forced into slavery 200+ years ago to the people who voluntarily enter the United States illegally along the the southern border and elsewhere. That dog just won’t bark.
Senator Harry Reid’s (Nevada) 1993 Position:
In 1993, Senator Reid, while speaking from the floor of the Senate, stated that “no sane country” would do what the United States has been doing i.e., reward illegal alien mothers’ children born in the United States with automatic citizenship. That was 17 years ago, and the United States is still rewarding illegal alien mothers’ with an automatic birthright of citizenship to their children born in the United States. (Senator Reid did flip flop his position thirteen years later.) Equally remarkable is that there seems to be no subsequent case taken to the U.S. Supreme Court for a ruling on the direct point. The question that appears to have never been asked of the Supreme Court in the last 112 years is this. Are children born in the United States of an illegal alien mother citizens pursuant to the 14th Amendment? As far as I can tell, no one within the Executive Branch of Government has ever bothered to seek a direct ruling on that issue. I believe most Americans, if aware of how this birthright citizenship evolved, would have expected the ICE (formerly INS) or the U.S. Attorney General to have challenged the insane assumption at least once in the last 112 years.