14th amendment and citizenship

 

Mark McEathron

@Mark_McEathron

A little history on the 14th Amendment and the "birthright citizenship" clause. I'm reminded that a lot of people do not know the process involved in bringing an amendment from concept to to ratification and law, or why that process matters. Jacob Howard (Senate) and John Bingham (House) were the two guys that drafted and presented the proposed amendment to Congress. Once submitted, there is debate. Members of Congress express concerns, propose changes, and so on. These debates are recorded for posterity to look back upon to better understand what the legislation is intended to do. Then, once Congress passes it and presents it to the States, there is the Ratification Process in which each State can debate and present their concerns. This leaves us with a tremendous record of why specific words and phrases were chosen and what the intent was. It informs the voters on exactly what the law means, straight from the framers of it, so that there is no confusion. This is why originalism is preferred to textualism. The law can only mean what it meant when it was adopted. Altering the meaning and intent of the law is altering the law itself and subverts the legislative process. Courts do not have that power. Sadly, that hasn't stopped courts from usurping that power. In the Ratification process, the very questions being argued before SCOTUS today, were addressed unequivocally. When asked if the amendment applies to foreigners, the framers themselves had this to say, explicitly: Howard said: “This amendment… declares that all persons born in the United States, and subject to the jurisdiction thereof, are citizens…” Then he immediately defines the limitation: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers…” That is the understanding of the law as it was ratified. That is what We The People voted to enact. Furthermore, they went even deeper on what "subject to the jurisdiction" explicitly meant: Howard described jurisdiction as: “Full and complete jurisdiction… not owing allegiance to anybody else.” Allegiance. That was the crux of the debate and understanding. For those born here from citizens of another Nation: “They are subject to the jurisdiction of the United States in a certain sense, but not in the full and complete sense.” - Howard Full and complete. That's what makes someone subject to the jurisdiction. “Subject to the jurisdiction thereof” means “not owing allegiance to anybody else.” - Senator Lyman Trumbull at the ratification debates They explicitly rejected absolute jus soli (citizenship by soil alone). In the case of United States v. Wong Kim Ark., the court applied the English Common law standard of jus soli, flagarently against Congress's explicit rejection of it during ratification. The court rejected originalism in favor of textualism. As a result, this Nation ended up with a very different legal structure than the Constitution created. The bottom line is that the 14th Amendment did not establish birthright citizenship. It ensured that due process and the rights and privileges in the States are preserved. If you listen to the oral arguments before the court today, I expect that you'll see this argument put forth. Allegiance, not presence, determines citizenship.