The meaning of the 14th Amendment has popped up again, this time with President Donald Trump saying that he could issue an executive order to put an end to the practice of conferring defacto citizenship on the children of illegals who give birth inside our borders.
First of all, the left always says we need to act more like Europe. But, no nation in Europe confers birthright citizenship. So, the left fails once again by its own criteria.
Still, despite common practice, the amendment that many liberals think gives out citizenship willy nilly was never meant to do so.
To understand the dilemma we are faced with in our current situation, we must consider today’s citizenship question as measured against the original intent of the framers of the 14th Amendment in 1866.
It is true that the originators of the citizenship clause of the 14th Amendment did not mean for citizenship to be bestowed upon the children of illegal aliens. We have but to read the words (though words not included in the actual amendment) of the man who proposed that part of the amendment, Senator Jacob Howard, a Republican from Michigan.
In 1866, Howard wrote, “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 accredited to the Government of the United States, but will include every other class of persons.”
Senator Howard also went on to clarify that he meant the “jurisdiction” wording of the amendment to confer a legal status on one who’s allegiance to the USA could somehow be assured. This would seem to disqualify anyone born of parents who come from another country and who have not become naturalized citizens of this country.
It is also true that the courts upheld this interpretation of “jurisdiction” in several cases. For instance, in 1884, in the case Elk v. Wilkins 112 U.S. 94 (1884), the word was defined as meaning “direct and immediate allegiance” to the United States and not just the geographic location of the person in question. This would seem to apply to the children born here of people who are illegal and would, presumably, still hold allegiance to the country from which they originally came. It is assumed, of course, that said parents would teach their child to revere the parent’s homeland and not the land of birth of the child.
But here is the catch. The reason the politicians of the late 1860s so carefully parsed the word “jurisdiction” was so that American Indians could not claim instant citizenship upon the passing of the amendment. That is right. The creators of the amendment meant to exclude Indians, many of who were at war – or soon would be, with the US government.
We also must remember that the Constitution is our guide, not common practice, or wanted policies.
Thomas Jefferson best sums up this concept in a letter he wrote to Supreme Court Justice William Johnson in June of 1823.
“On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
Earlier, as president, Jefferson proclaimed, “The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible.”
And it wasn’t just Jefferson that held such a concept sacrosanct. Early Supreme Court Justice James Wilson echoed Jefferson when he said, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
Even the English philosopher, David Hume, a man for whom most of the Founders had great respect and whose ideas were closely considered, voiced a similar sentiment. …in order to preserve stability in government, that the new brood (new generation) should conform themselves to the established constitution, and nearly follow the path which their fathers, treading in the footsteps of theirs, had marked out for them.
We should closely consider what the originators of the Constitution or any of its amendments meant to say before we, today, pass judgment on, or consider the implications of, our national law.
We also have the capacity to alter those amendments, granted.
To quote another founder to this effect: “But the constitution, which at any time exists till changed by an explicitly and authentic act of the whole people is sacredly obligatory upon all.” George Washington, Father of our Country, said that one.
In other words, we can change the Constitution. God didn’t hand it down from the mount, after all. But we should only attempt to make changes to the Constitution when no other remedy is possible. We should be very careful about how we approach that supremely important document.
There is one thing that is 100% sure, though. The 14th Amendment does not confer citizenship on illegals.
Follow Warner Todd Huston on Twitter @warnerthuston.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com