As reported by my good friend and colleague Elizabeth Vaughn, President Trump is taking steps to eliminate the illegal abuse of what is known as “birthright citizenship.” As always, Ms. Vaughn has penned an excellent article. However, I do disagree with her in one regard, her incorrect analysis of the 14th Amendment and its applicability to children born on US soil to illegal aliens. She writes, emphasis mine
Again, he reignited debate on the policy last fall saying he would sign an executive order to do so. He faced serious backlash from Democratic lawmakers and even some Republicans. They argued, correctly, that birthright citizenship is a right guaranteed by the Citizenship Clause of the 14th Amendment (adopted in 1868) and any changes would require the approval of Congress.
The Citizenship Clause states that “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 was meant to override the 1857 Dred Scott v. Sandford decision that denied African Americans citizenship.”
With great respect, my colleague Ms. Vaughn is incorrect, as are the folks who “argued correctly.” Here is why. It’s all about the phrase, “subject to the jurisdiction thereof.” “Subject to the jurisdiction,” means complete, political and sovereign jurisdiction as opposed to what’s known as simple “territorial jurisdiction.”
Complete jurisdiction includes not only legal jurisdiction, but also political. It includes allegiance to a sovereign authority. Territorial jurisdiction is the the authority exerted over a given geographic area. Countries have territorial jurisdiction over just about anyone who is physically inside their borders. However, they have complete, political and sovereign jurisdiction of all of their citizens/subjects, wherever they may be.
An example of this would be if a visiting tourist from Canada, dissatisfied with the whiskey produced in his home country, got caught shoplifting a bottle of a bottle of Clyde May’s, Alabama’s finest small batch bourbon. The State of Alabama would exert territorial jurisdiction and arrest him. He would still however, retain his Canadian citizenship and remain a subject of The British Crown.
This same concept applies to illegal aliens who cross our border and end up giving birth. A couple from Guatemala might illegally enter the United States and while there, the expectant mother could give birth. Although we might detain the family and possibly prosecute the mother and father for a violation of U.S. Law, the entire family would still be subject to the complete/sovereign jurisdiction of Guatemala and most importantly, the child would remain a Guatemalan citizen.
This is a good move for the President to make. There is no statute preventing him from adhering to the 14th Amendment as he interprets it in questions of citizenship. He would not be changing the Constitution or existing law. He would merely be enforcing it as see sees it. Of course this will have two salutary effects. First, it will provide yet another avenue for the President to demonstrate just how the Democrat Party prioritizes the interests of foreigners over U.S. citizens. Second, if he times this correctly and ideally, with yet another Supreme Court pick, this could settle this issue once and for all.
Mike Ford, a retired Infantry Officer, writes on Military, Foreign Affairs and occasionally dabbles in Political and Economic matters.
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