A look at the 14th Amendment's Citizenship Clause

[mahatmakanejeeves]

Last edited Tue Oct 30, 2018, 01:15 PM - Edit history (1)

The Citizenship Clause of the 14th Amendment states: "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."

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A look at the 14th Amendment’s Citizenship Clause

30 minutes ago

WASHINGTON (AP) — President Donald Trump says he wants to order the end of the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born in the United States.

Section 1, which contains the Citizenship Clause, of the 14th Amendment guarantees that right for all children born in the U.S.

A look at the 14th Amendment:

WHAT CITIZENSHIP CLAUSE SAYS:

“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.”

The second sentence contains two of the most important clauses in the Constitution, the due process and equal protection clauses. They apply to everyone in the U.S., not just citizens:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

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RogueAltGov Retweeted

Heard a reporter today call birthright citizenship a "policy."

It is not. It is a right enshrined in the constitution.

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[wasupaloopa]

1. The right always say they are all in favor

of following the Constitution but like everything they say, that’s bull shit.

[2naSalit]

2. The intent is to destroy the Constitution...

on pootie's orders.

[MosheFeingold]

3. From an old lawyer's perspective, it's interesting

No, not the policy, but the Constitutionality.

The original purpose of the Amendment was to make clear that freed slaves were citizens and not persons without a country, which the former Confederate states attempted to do (along with some others).

The question is thus what "and subject to the jurisdiction thereof" means. There is clear case law, that, for example, the children of invading soldiers in the USA would not be "subject to the jurisdiction thereof", nor would be children of foreign diplomats.

The Supreme Court dealt directly with the issue only once, in a case involving the child of two Chinese legal immigrants who held what-would-now-be-called a "green card" -- the Court ruled that children of such permanent, legal, residents (who had subjected themselves to the jurisdiction of the USA) were, in fact citizens.

Left unanswered is the question of the children of tourists and of people in the country illegally.

And, believe it or not, birth tourism is a thing -- rich Russians and other oligarchs fly wives to the USA to give birth, and voila, their children are now US Citizens. Rich Chinese do, as well.

Most Western countries do not grant citizenship via birth tourism or unauthorized aliens -- this being most of the EU, Australia, etc. The rest of the developed or third world (e.g., Japan, China, India) do not either. The USA is very much an outlier in this regard.

So the question is not really Constitutionality (although it may be).

It's a policy question.

I understood this to be a matter for Congress, not the President, as there is a statute defining who is a citizen.

So I don't think an EO would be effective.