Why Birthright Citizenship Distorts the Spirit of 14A
By Dr. Jimmy Lee Tillman, II
The echoes of Reconstruction still resonate in the halls of American power, yet their meaning is routinely distorted. The current debate surrounding birthright citizenship deeply troubles me as a historian who has dedicated my life to understanding the 14th Amendment and its impact on Black America. The arguments advanced by its proponents often fail to grasp the profound historical weight of this landmark legislation and the specific context of its creation. We risk losing sight of the struggles and aspirations of Black Americans, which gave birth to the 14th Amendment, if we allow a superficial, politically driven understanding of its meaning to prevail.
President Trump has history on his side as he prepares to issue an executive order to end birthright citizenship. Those in favor of "birthright citizenship" fail to take into account the context and spirit of the 14th Amendment. In 1868, following the end of the Civil War, Congress approved this amendment, allowing formerly enslaved Blacks and their descendants to become citizens. Throughout the amendment's time of existence, Democrats keep weakening the 14th amendment and its attempts to repair the damage of slavery. Granting citizenship to children born to folks who simply happen to be in our country is an insult to the Black American community.
The 14th Amendment doesn't say just because you are born in this country, you are an American citizen. The 14th Amendment states that "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are citizens. You cannot ignore the last part of the 14A just because nobody objects. This skimmed-over but crucial part of the 14A is about a person's political loyalty and another government's jurisdiction over them.
The notion that anyone entering this country has "submitted" themselves to the jurisdiction of the United States is absurd. This would grant automatic citizenship to the children of visiting diplomats, foreign exchange students, workers, and vacationers. These "anchor babies" are under the jurisdiction of their parents' native country. So are the children whose parents entered our country illegally.
This argument has been litigated before. The Supreme Court determined in the 1872 Slaughter-House rulings the exclusion of "children of ministers, consuls, and citizens or subjects of foreign states born within the United States" from the qualifying terms. Similarly, in Elk vs. Wilkins (1884), the US Supreme Court rejected an American Indian's citizenship application on the grounds that he professed "immediate allegiance to" his tribe rather than the United States.
Let's not forget the Indian Citizenship Act of 1924 that allowed Native Americans and their descendants to be granted the right to petition for citizenship. There would have been no need to ratify the 14th Amendment if it had ensured that all children in the U.S. would be citizens at birth, regardless of their parents' immigration status or any other circumstance.
Trump can clear up this confusion in the government. The United States immigration statute (8 U.S.C. 1401) correctly uses the term "subject to the jurisdiction thereof" to apply the 14th Amendment. The State Department, however, interprets this law incorrectly. Anyone born in the United States is eligible to apply for a passport from this agency, regardless of the immigration status of either parent. Being "subject to the jurisdiction" of the United States government is also a criterion that the department ignores. The department has granted birthright citizenship by decree due to this misunderstanding, rather than in accordance with federal law or our Constitution.
Washington lawmakers should review the current system and amend the law to reflect the true spirit of the 14th Amendment. This is a teaching moment. After the Civil War, the Constitution evolved to include the rights of freed slaves and their children, and Black American Patriots have always watched over it to guarantee our rights and freedoms for all.
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