ANALYSIS/OPINION:

The suggestion by at least three senators that the Constitution be amended to deny birthright citizenship to children of illegal aliens born in the United States has induced derogatory retorts that to do so would negate the 14th Amendment’s protection of civil rights. Historical facts - ignored by those opposed - in fact demonstrate that such an amendment would reinstate the rule as originally intended by the adoption of the 14th Amendment in 1868.

At issue is the first clause of the 14th Amendment, which states, “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” As the Supreme Court held in the Slaughterhouse Cases shortly after the adoption of that amendment, the main purpose “was to establish the citizenship of the negro,” who, while recently freed in the Civil War, “were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.” No one has ever suggested that the three civil rights amendments (13th, 14th and 15th) would have been adopted, absent the need to give citizenship and protection to blacks.

Even more relevant, and totally ignored in the current discussion, is that, while the 14th Amendment reads “all persons born in the United States” are citizens, it has never been disputed that “all” never meant “all.” In 1873, less than five years after the adoption of the 14th Amendment, the Supreme Court addressed the meaning of that citizenship provision by considering the facts surrounding the adoption of the 14th Amendment, “almost too recent to be called history, but which are familiar to us all.” The court concluded, without dissent on this point, that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

If that had remained the Supreme Court’s ruling on this issue, there would be no need for a new amendment to deny citizenship to children of illegal aliens. But more than a quarter-century later - when the members of the Supreme Court no longer claimed personal knowledge of the events leading up to the 14th Amendment - the court, in United States v. Wong Kim Ark, spoke again on this issue. It first reaffirmed that “all” in the 14th Amendment did not mean “all.” It recognized exclusions: A child born in the United States to a member of an Indian tribe, or to ministers or consul of a foreign government, or to alien enemies in hostile occupation, was not a U.S. citizen. The reason for these exceptions was that such parents did not owe this country “direct and immediate allegiance.”

This later Supreme Court, however, disagreed with the earlier decision holding that a child born to aliens in this country does not have birthright citizenship, at least on the facts presented in that case. At the time of his birth, Mr. Wong’s “mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein … and were engaged in the prosecution of business.” Mr. Wong had, throughout his life, lived in the United States at the family home in Sacramento Calif., leaving only for short visits to China. These facts were the antithesis of current illegal aliens. Given those facts, the court held that Mr. Wong met the requirement of being “subject to the jurisdiction” of the United States, and thus sustained his citizenship from birth.

Should that decision necessarily mean that “all” persons born to illegal aliens automatically receive citizenship? It doesn’t even discuss illegal aliens (which did not then exist) and thus does not answer that question.

The court, however, sets forth two conditions that, if existent, warrant providing citizenship to children of aliens: “allegiance” and “ligeance.” For example, American Indians were excluded from birthright citizenship, because they were held to owe allegiance to their tribes, not to the United States. Ligeance, for those unfamiliar with that old English term, is the “connection between sovereign and subject by which they were mutually bound, the former to protection and the securing of justice, the latter to faithful service.”

A bill just introduced in the Texas Legislature by Rep. Leo Berman prohibiting the issuance of a birth certificate to a newborn child of an illegal alien - if enacted - would undoubtedly make it necessary for the Supreme Court to decide which of its two 19th-century holdings on the meaning of the citizenship provision in the 14th Amendment is the correct one as related to children of illegal aliens.

That issue would be presented by a lawsuit by such child to require issuance of the birth certificate and for a declaration of the unconstitutionality of the law. The court would then have to consider whether an illegal alien meets the requisite requirements of allegiance and ligeance to have truly placed himself “subject to the jurisdiction of” this country’s government. How would that be possible given the alien’s violation of this country’s laws by entering and remaining? Isn’t violation of law, by definition, inconsistent with allegiance and, particularly, faithful service to this country?

Unless that statute is enacted in Texas or another state, this issue cannot readily be presented to the Supreme Court because of a judicial prerequisite to hearing a case that requires the plaintiff to have “standing” - a personal interest. It is doubtful that any interested taxpayer would have standing to object to issuance of a birth certificate, documenting a claim of citizenship by a child of an illegal alien. Hence, absent a case challenging a state’s refusal to issue a birth certificate, the courts could only rule on it if and when the government itself were to raise this issue in the courts - unlikely, at least with the current administration.

Thus, without state action on the subject, the only practical way to return to the original intent of the 14th Amendment would be through a new constitutional amendment. Beyond that, these facts demonstrate that those seeking to return to that original intent should not be castigated for supposedly seeking to emasculate the 14th Amendment; they are not.

Gerald Walpin is a New York lawyer who served as inspector general of the Corporation for National and Community Service. He is currently working on a book on how the Supreme Court has altered the Constitution.

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