ILLEGAL IMMIGRATION - Birthright Citizenship | Eastern North Carolina Now

    The term "birthright citizenship" refers to the idea that you can become a citizen of a country simply by being born there. The fancy legal term is jus soli, "right of the soil" (as opposed to the policy termed jus sangunis ("right of blood") by which nationality or citizenship is not determined by place of birth, but by having an ancestor who is a national or citizen of the state.

    In this country, citizenship is defined not in the Constitution per se, but in the first section of the 14th Amendment. It is referred to as the "Citizenship Clause" and reads: "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...... "

    It is currently the object of great contention right now after President Trump announced he was planning on eliminating "birthright citizenship" as it pertains to those entering our country illegally.

    The purpose of this article is to explain why the "Citizenship Clause" cannot be understood, or should be interpreted, to include birthright citizenship to babies born to illegal aliens.

    The 14th Amendment is one of the three post-Civil War Reconstruction era amendments to the Constitution - the 13th (abolishing slavery and indentured servitude), 14th (giving freed blacks citizenship and civil rights), and 15th (giving blacks the right to vote). It passed in the US House, after several proposals were considered, in May 1866 (House Resolution 127, 39th Congress), sent to the Senate where amendments were added, and sent back to the House which eventually agreed to the Senate amendments on June 18, 1868. On June 18, a concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress.

    It's general intent, at least that of the first section, was to vest newly-freed slaves, and other African-Americans with the rights of citizenship in light of the 13th Amendment which had abolished slavery and in light of the Dred Scott decision of 1857 which held that any person descended from Africa (Africans), whether slave or free, is not a citizen of the United States, according to the US Constitution.

    I. HISTORY:

    In 1857, the US Supreme Court handed down arguably the most offensive opinion issued by the high court, or any court - the Dred Scott v. Sandford opinion (commonly just referred to as the Dred Scott opinion).

    The case had been in the court system for more than a decade. Scott had been born into slavery in 1795. In subsequent years, he lived in two parts of the United States that didn't allow slavery, Illinois and Wisconsin, along with his master. When his current master died in 1846, Scott filed suit on behalf of himself and his wife, also a slave, to gain their freedom. The case was heard by three other courts as it made its way to Washington.

    The Court ruled, in a 7-2 opinion, against Scott. Judge Roger Taney wrote the opinion of the Court, which highlighted, include the following:

    4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States. The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.


    5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

    6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.

    7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

    8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

    9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

    [Taken from the Opinion - Dred Scott v. Sandford, 60 U.S. 393. Go to the Appendix for more information on the case]

    In a poor exercise of reasoning, Judge Taney argued: "There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed."

    The Dred Scott decision ("opinion') came just two days after President James Buchanan took office, and it set the tone for his controversial term that led to the Civil War. The decision was celebrated in the South but the Abolitionists in the North were outraged. The court also declared the Missouri Compromise of 1820 to be unconstitutional. And it said that Congress did not have the authority to prohibit slavery in the territories, which would seem to prohibit Lincoln from his campaign promise to prohibit the spread of slavery into the western territories.

    With the Dred Scott decision and its voiding of the Missouri Compromise, thus making slavery legal in all U.S. territories, and the promise by candidate Abraham Lincoln that he would enforce the Morrill tariff (the highest tariff yet, up to 47% by 1863) passed by Congress in May 1860 and signed by President Buchanan), the election of 1860 was a completely sectional election - pitting the North against the South.


    In November 6, 1860, Lincoln was elected the 16th president of the United States, without an actual majority (less than 40%) and without a single vote from any of the Southern states that would later form the Confederacy (except Virginia, where he got 1%). On December 20, the South Carolina state legislature voted to secede from the Union (issuing its "Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina" on December 24). Six other states followed suit before Lincoln was even inaugurated: Mississippi (on January 9, 1861), Florida (on January 10), Alabama (on January 11), Georgia (on January 19), Louisiana (on January 26), and Texas (on February 1). On February 8, the seceded states met and held a convention in Montgomery, Alabama and agreed to form a Union - the Confederate States of America. They adopted a constitution at that convention, which by many accounts was superior to the US Constitution.

    Lincoln was inaugurated on March 4, 1861 and on April 12, shots were fired by South Carolina on Fort Sumter (held by Union Major Anderson), giving him the pretext to invade the South and begin the Civil War. Rejecting the natural right of secession, he characterized the actions of the Southern states as "rebellion," and used the armed forces of the United States to "force them back into the Union" (which was confusing since Lincoln claimed they never left the Union since they didn't have the right to do so).

    Lincoln called the question about whether the Southern states were in or out of the Union a "pernicious abstraction." "Obviously," he explained, they were not "in their proper practical relation with the Union."

    After General Robert E. Lee's surrender at Appomattox on April 9, 1865 and Lincoln's assassination on April 14 (he died the following morning), the country entered into a decade-long period, or process, known as "Reconstruction" - the "reconstructing" of the Union. Through this process of Reconstruction, the Northern-dominated federal government attempted to resolve the political and constitutional issues that led to the Civil War and in effect, through punishment of the South (those responsible for seceding and those in support of the Confederacy) and by changing the body politic of the former Confederate states. The priorities were: to guarantee that Confederate nationalism and slavery were ended, to ratify and enforce the 13th Amendment which outlawed slavery; the 14th Amendment which guaranteed dual U.S. and state citizenship to all native-born residents, regardless of race; and the 15th Amendment, which made it illegal to deny the right to vote because of race.

    The US House passed the 13th Amendment in January of 1865, without any representation from the Southern states (their representatives were not allowed to be seated), and then sent to the states for ratification. As for the former Confederate states, the amendment was submitted to "reconstruction governments," devoid of anyone that had "supported the Confederacy." The question as to whether these were in fact legitimate legislatures is a valid one. Nevertheless, the 13th Amendment was ratified by 3/4 of the states, and hence certified as valid, on December 18, 1865.

    Next would come the 14th Amendment.

    It would play an important role in Reconstruction (in the North's reconstruction of the South back into the Union).

    When it looked as if the North would defeat the South, even before Sherman's march, Republicans had began to make plans for the reconstruction of the war-torn and still greatly divided country. Their most important concerns were for the formal adoption of the 14th Amendment (which they intended would elevate newly-freed slaves and free black persons to full citizenship), elimination from power anyone who supported the Confederacy, and the adoption of black male suffrage provisions (to dilute the South Democrats) as conditions for re-admission.

    The 14th Amendment was intended to memorialize the guarantees of the 1965 Civil Rights Act in the US Constitution. In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court.


    Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson's veto was overridden and on April 9, the measure became law. Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.

    While the Civil Rights Act of 1866 addressed many of Congress's concerns about citizenship and civil rights, several members of Congress worried about the Act's constitutionality and permanence. Two months after the Act became law, Congress would approve H.R. Res. 127, which when ratified by the states would become the 14th Amendment. Addressing citizenship in words almost identical to those of the 14th Amendment, the Civil Rights Act declared: "That 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 Act then addressed certain specified civil rights by saying:

    "Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."