Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided Loyalties

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Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesEvery four years, we are reminded that the president of the United States must be a “natural born citizen.” But what does this even mean? Does it apply to everyone born in America, and is there a difference between a “native born” (one naturalized at birth by statute) and a “natural born” (one who does not require any naturalization) citizen?

That’s the thing: It’s never really been decided who is and is not a natural born citizen of the United States. In fact, there’s not even universal agreement that anyone born within the borders of the United States is a natural born citizen. Unsurprisingly, there is an ideological divide in the United States between those who believe anyone born here is a citizen and those who disagree.

While the concept of a “natural born citizen,” which goes all the way back to England, is often discussed in terms of who can and cannot be the president, it alludes to bigger issues: Of illegal vs. legal immigration as well as assimilation, because its goal is to protect against electing someone with divided loyalties. The concept itself has roots in the Old World, but it also presents pressing questions for the United States today that go far beyond presidential politics and to the very core of the character of our nation.

There was a massive immigration to the United States between the end of the Civil War and the beginning of the Great Depression. However, those who are so quick to remind us of this historical truth neglect another: There was also an almost total moratorium on immigration between the Great Depression and when Ted Kennedy and his paymasters opened the borders in 1965. Further, those such as Pat Buchanan and Ann Coulter have explored the role that mass immigration played in dramatically expanding the scope and size of the federal government in the late 19th and early 20th centuries.

Birthright citizenship was for freed slaves. So why is it being used to allow the children of illegal aliens to vote in our elections and enjoy other benefits of citizenship? More to the point, why are we allowing one faction of American politics to import an unlimited number of reliable voters, and how is this undermining our representative republic?

The Roots of Natural Born Citizenship

Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesThe concept of “natural born citizens” goes back to at least 1608, with Calvin’s Case. This court case attempted to determine whether or not a child born in Scotland after the Union of the Crowns could be considered an English subject, receiving the rights and privileges thereof. While this might sound far away, this case has been explicitly cited in the United States (not just the colonies) as the bedrock of the natural born citizen question under the law.

The case in question was to determine whether or not a child born in Scotland could inherit estates and own land in England. This was not a theoretical question at the time due to the rights, privileges and duties that came with holding land during this era. It was taken as a given by most medieval legal systems that one could not hold land in two different kingdoms, as this would mean fealty to two possibly antagonistic monarchs.

However, in this case, there were no two antagonistic monarchs: King James VI of Scotland had become King James I of England. While the two were governed as separate countries, they were now in personal union under King James. The British courts ultimately found that those born after his ascension to the English throne were natural born citizens, but those born before it were not.

Practical considerations were likely in play here: Naturalizing all Scots would have meant a much bigger appetite for authoritarian rule and the Divine Right of Kings. The court case was later used by Patriot colonists to argue that Americans had the Rights of Englishmen.

From there, the concept is used throughout English and later British nationality law, but always in a similar manner to the United States. “Natural born” is used, but never defined. The general consensus is that this means that citizenship is transmitted by land (jus soli), not blood (jus sanguinis). However, even this has a number of dangling questions and unresolved contradictions, as we will find out.

What Does the Constitution Say About Natural Born Citizens?

The United States Constitution mentions natural born citizens only once: when clarifying qualifications for president. This is the only special privilege that those natural born citizens of the United States hold over those who are naturalized.

This has been challenged a number of times, most notably by Abdul Karim Hassan, who filed challenges to the rule on the grounds that it violated the Fourth, Fifth and Fourteenth Amendments to the Constitution. In fact, over a period of years from 2011 to 2013, Hassan, a Guyanan-born naturalized citizen of the United States, filed no fewer than six lawsuits to overturn the prohibition against naturalized citizens becoming president of the United States. He lost every one.

There have also been attempted Constitutional Amendments introduced, but none have passed. Each time, these were attempts at making a single naturalized citizen eligible for the presidency: First, there was a Constitutional Amendment proposed in 1974, by Representative Jonathan Bingham, with an eye toward making Secretary of State Henry Kissinger eligible. Kissinger had no interest that we know of in running for the highest office in the land. Rather, the attempt to rewrite the Constitution was more about making him fourth in line for presidential succession.

The second attempt at amending the Constitution in this manner was then-Senator Orrin Hatch’s Equal Opportunity to Govern Amendment in 2003. This was designed to allow California Governor Arnold Schwarzenegger the chance to run for president. Schwarzenegger has long been a critic of the natural born citizen clause of the Constitution and has reportedly considered challenging the law himself at times.

Scholars mostly agree that the purpose of this clause was to prevent undue foreign influence in American government.

Natural Born Citizenship in America Throughout the Years

Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesAs with most aspects of American law, there have been some fluctuations in the interpretation of natural born citizenship throughout the years. The Naturalization Act of 1790 clarified that the children of U.S. citizens born abroad would be considered as natural born citizens of the United States. This distinction was repealed by the Naturalization Act of 1795. Both acts required that the father had resided at some point in the United States.

There was an instant debate in the early United States over what constitutes a natural born citizen and how this differed from a “native born” citizen. Lynch v. Clarke in 1844, was the first court case to hint at birthright citizenship, that is citizenship stemming from being born on American soil rather than having it come from one’s parents. The case revolved around a New York State law that restricted inheritance of real estate to U.S. citizens, a common provision at the time. An 1884 court case, In re Look Tin Sing, found that Chinese born in America were citizens regardless of their parental citizenship and how much time they had spent in China since their birth. In 1898, United States v. Wong Kim Ark affirmed that parental citizenship was not a requirement for birthright citizenship.

But an earlier case, Minor v. Happersett in 1875, found that the citizenship of those born in America of foreign parentage was dubious.

The 1939 decision Perkins v. Elg found once again that those born in the United States were natural born citizens, no matter how much time they spent outside of the country and for the first time specified that they were eligible for the office of president of the United States. Montana v. Kennedy, a 1961 Supreme Court decision, found that a man born of an American woman by Italian paternity was not a citizen because the laws of the time he was born excluded him. At that time (1906), your father needed to be American for you to qualify. The distinction was only granted to both parents some 28 years later in 1934.

A 2010 case brought before the Fifth Circuit Court of Appeals ruled that American citizens can lose their citizenship if the territory in question ceases to become American territory, for example the Philippines, which the United States acquired during the Spanish-American War and held until after World War II, weathering a massive insurrection from 1899 to 1902. In this case, a Philippine-born litigant was found to not be an American citizen, even though his parents might have been considered American citizens, despite having lived their entire lives in the Philippines. While several appellate courts have ruled that those born in the Philippines when it was an American territory are not and would not have been American citizens, the matter has never been ruled on by the Supreme Court.

Puerto Ricans were made United States citizens by statute by the 1917 Jones–Shafroth Act.

The Changing Landscape of American Immigration Law

None of this can be divorced from the more general attitude of Americans with regard to immigration, specifically as expressed through immigration law. Article I, section 8, clause 4 of the United States Constitution authorizes the United States Congress to make immigration policy.

The first immigration law passed by Congress was the Naturalization Act of 1790. This famously restricted immigration to “free white persons… of good character.” The law excluded a number of people from the naturalization process, including indentured servants, free blacks and Native Americans, though free blacks were allowed citizenship through several states at birth. The law likewise specified that to be natural born, a citizen had to have a father who had resided in the United States. Such children would be natural born citizens, even if born abroad or at sea. Indeed, this is the only statute in American history to include the phrase “natural born citizen.” Those seeking naturalization needed to reside in the United States for two years and for one year in the same state.

The Naturalization Act of 1795 was the next stop on the road. This increased the residence period to five years and introduced a “notice period” whereby those intending to naturalize were expected to give three years notice of intent. “Good character” was changed to “good moral character.” The Naturalization Act of 1798 later changed the residency period to 14 years and the notice time to five, largely as a naked political attempt to stop immigrants from naturalizing and voting for the Democratic-Republican Party. It led to a large increase in naturalizations from those trying to beat the clock.

This law was effectively repealed in 1802, when the Democratic-Republicans were firmly entrenched in power – residency was reduced to five years and notice of intent to three. British soldiers who stayed behind were explicitly excluded from citizenship by the law.

After this, immigration law is static until the Fourteenth Amendment, which does not address immigration and naturalization at all, but rather makes all freed black slaves into American citizens. In 1870, a law was passed to allow for naturalization of blacks, but Asians were still excluded and continued to be.

The Chinese Exclusion Act of 1882 ended all immigration of Chinese laborers into the United States. It was, in effect, an expansion of the Page Act of 1875, which prohibited the immigration of Chinese women into the United States. The intention of this law was largely to cut down on the rampant trafficking of Chinese women into the United States for prostitution to Chinese laborers. Many other Chinese women coming to the United States around this time were concubines or second wives.

The Chinese Exclusion Act did not just prohibit further immigration from China into the United States. To leave and then return to the United States required special paperwork. The Scott Act of 1888 expanded this to explicitly bar reentry of any Chinese leaving the United States for any reason. The Geary Act of 1902 further expanded the law to make it necessary for all Chinese to obtain certificates of residence if they wished to remain in the United States.

While not formally a law, the Gentlemen's Agreement of 1907 bears mentioning. This was an informal agreement between the United States and the Empire of Japan wherein the latter said they would not issue passports to Japanese subjects looking to emigrate to the United States of America. The American part of the deal had the United States tolerating existing immigrants and allowing their wives, children and parents to join them.

Many circumvented this law by entering into arranged marriages through the mail with what were called “picture brides,” a process very similar to the mail-order bride phenomenon of today. What’s more, the Japanese government itself circumvented the law by providing passports for those seeking settlement in the Territory of Hawaii. From there it was easy to emigrate to the United States. In the 1920s, the Japanese government ceased issuing passports to single women for the Territory of Hawaii.

An 1882 law banned “lunatics” and the infectious. In 1901, Congress passed the Anarchist Exclusion Act after President William McKinley was assassinated by anarchist Leon Czolgosz, who was born to immigrants.

The next major immigration law was passed in 1917, the Immigration Act of 1917. This was a massive expansion of immigration restrictions that first introduced a literacy requirement. There had been a long struggle for a literacy requirement going back to 1894, with the Immigation Restriction League championing this as a requirement for immigration. In 1895, Henry Cabot Lodge’s bill making literacy a requirement was passed, but vetoed by Democrat Grover Cleveland. President Theodore Roosevelt supported the notion in his first address as president in 1901, but the bill didn’t have the votes to pass Congress in 1903. The Senate passed a literacy requirement in 1906, but the House didn’t and the provision was eliminated in committee.

This was the first act of Congress to impact European immigrants. It also barred all immigration from the Asia-Pacific zone, which was defined using coordinates on the globe and included China, British India, the Malay States, Arabia, Afghanistan, Siam, Burma, the Dutch East Indies, most of the Polynesian islands and even the Soviet Union east of the Urals. The literacy requirement applied to all immigrants over 16, and required them to read 30 to 40 words in their own language. The bill raised the immigration head tax to $8 and removed the exemption for Mexican immigration.

The Emergency Immigration Act of 1921 introduced immigration quotas, which heavily favored English-speaking and Northern European countries. Immigration was capped at 3 percent of the total population living in the United States from that country according to the 1910 census, which prioritized British and Northern European immigrants. Skilled professionals were allowed without regard for origin and the quota restrictions did not apply to Latin America. The number of immigrants admitted to the United States fell dramatically as a function of this law, from 805,228 in 1920, to 309,556 in 1921-22. The Immigration Act of 1924 further curbed immigration by limiting all Eastern Hemisphere immigration to 154,227 annually.

The Immigration Act of 1924 created the United States Border Patrol and increased Eastern Hemisphere immigration limits to 165,000. Other quotas were lowered to 2 percent based on the 1890 census.

While not a statute, the Supreme Court decision United States v. Bhagat Singh Thind retroactively stripped all Indian-Americans of citizenship on the grounds that they were not white.

President Herbert Hoover took the step of effectively ending all immigration to the United States in 1932, to protect American labor during the Great Depression. Between 500,000 and two million Mexicans were repatriated during this time, some voluntarily, some through force or coercion. Immigration from 1931 to 1940 stood at a total of 528,000, or fewer than 53,000 annually.

Chinese exclusion laws were repealed in 1943, with discrimination against Filipinos and Indians repealed in 1946. Each received a quota of 100 per year.

In 1952, due to the Immigration and Nationality Act of 1952, immigration quota numbers were based on the 1920 census, and for the first time, all racial language was removed from the American immigration code. Many of the anti-subversive measures of the law are still in effect today, though the prohibition against homosexuals was dropped in 1990.

The current immigration landscape was effectively created by the Immigration and Nationality Act of 1965, also known as the Hart–Celler Act. It was a radical reimagining of the immigration landscape, largely at the behest of big business and its thirst for cheap labor. All national quotas were abolished and the Western Hemisphere had a quota of 120,000 imposed, with the Eastern Hemisphere limited to 170,000. Preferences were given to those with in-demand skills for the United States economy.

No one asked why we could not simply train Americans to fill these jobs. Soon the rhetoric changed and immigrants were “doing the jobs Americans wouldn’t do.” This now includes many high-tech jobs, where the lion’s share of H1-B visas go.

The other major change to American law in this bill was family reunification. This became a major priority of the bill, which is what has allowed chain migration into our nation, including terrorists such as the Boston Marathon bombers. The bill was largely sold to the American people by Senator Ted Kennedy, who promised Americans that "the bill will not flood our cities with immigrants. It will not upset the ethnic mix of our society. It will not relax the standards of admission. It will not cause American workers to lose their jobs." Of course, the exact opposite was true – the demographic character of America was radically changed while jobs were handed out to foreign nationals. The entire bottom rungs of the employment ladder (such as domestic service jobs and day labor) were effectively given to immigrants, legal and otherwise.

The only major change to immigration law since then was the Immigration Act of 1990, which radically expanded immigration in the United States, allowing 700,000 immigrants annually. While there have been changes to immigration law since then that effectively track and trace immigrants more closely or make them jump through hoops, there are a very small minority of voices in American politics who dare to ask the simple, straightforward and common sense question – what are all these immigrants doing for America? And what cost is being paid by a loss of social cohesion resulting from mass immigration?

Natural Born Citizens and Natural Law

Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesThe legal consensus throughout history is that one of the ways one receives “natural born” American citizen status is simply by being born here, regardless of parentage. However, something that virtually everyone throughout history has agreed upon is that a “natural born citizen” is just that – natural born. That is to say, naturally born a citizen, not made one by statute. This is due to a principle largely forgotten throughout history, the notion of natural law.

Natural law is the philosophy that law is something that exists outside of the dictates of government. Under natural law philosophy, there is something called law, which just exists naturally, and something called legislation, which is what parliaments and governments come up with. In theory, natural law is supposed to be codified by parliaments into legislation and statute… but, of course, the reality is very different. The point, however, is that natural law is the law regardless of legislation. Under natural law theory, legislation declaring murder to be mandatory would be an illegal law, because murder is simply illegal by natural law, regardless of what statute says.

Natural law underpinned the Declaration of Independence. In this document, Thomas Jefferson appeals to natural law to assert the rights of American colonists as Englishmen, coming to the conclusion – using natural law – that rebellion is not only right and justified, but also necessary.

Extrapolating from this, anyone who has been made a citizen by any law – even one that explicitly declares them to be so – would not be a natural born citizen, but a naturalized one.

Why does any of this matter? Because the Founders would have been proponents of natural law, for one. What’s more, this philosophy continued to maintain intellectual sway well into the 20th century among American jurists, political philosophers and statesmen. Indeed, the 14th Amendment is predicated on codifying the citizenship of those who were already thought to be natural born citizens under natural law.

The 14th Amendment is a wordy one, but the important part for us is a single sentence: “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 important part of this sentence is “and subject to the jurisdiction thereof.” This is the crux of what will be our discussion throughout the rest of this article.

What’s more, natural law is important because, under it, the United States is not claiming other citizens as its own. Indeed, Section 1992 of the U.S. Revised Statutes of 1866 put it plainly that the citizens of other nations are not claimed, no matter where they are born: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

This is an important point, as America again revisits the question of natural born citizenship in a global age. There is a strong argument to be made that those born in the United States to those practicing “birth tourism” are not natural born citizens and thus require naturalization. What’s more, there is the question of what citizenship claims the children of those in the country illegally would have – other nations would certainly have a citizenship claim on them. Thus, “birthright citizenship” as it is commonly understood is likely against the principles of natural law, as well as American statute.

It’s easier than ever to come to the United States simply for the purpose of having a child, and thus, an American citizen in the family. Once this is done, it is possible to chain migrate the entire family over to the United States. This makes a mockery of our borders and a mockery of our sense of national identity. Whatever the Founders – or even Ted Kennedy for that matter – wanted out of our immigration laws, it certainly wasn’t that.

For better or for worse, throughout history, natural law has always understood a child as inheriting the citizenship of their father, not their mother.

Jus Soli vs. Jus Sanguinis

Part of the debate are the twin concepts of jus soli and jus sanguinis.

First, jus soli. This is the concept that citizenship comes from the land and it is the norm throughout the Western Hemisphere. It was also largely the principle in English common law, which forms the background of American jurisprudence. In the modern era, it is an effective prevention against people being born stateless if they are simply afforded the citizenship of the nation in which they live.

However, even this is not the open door birthright citizenship that most think of. Even in places where jus soli is the law of the land, there are generally requirements people have to meet for them to qualify for citizenship on this basis. Indeed, Ireland, the last country in Europe to have a totally unrestricted jus soli law, modified its statute in 2004, with the explicit intention of preventing birth tourism.

By contrast, jus sanguinis is citizenship by blood. Most modern jus sanguinis laws require that one or both parents be citizens of a country for their children to enjoy citizenship of that nation. What’s more, the citizenship can follow the parents to where they are. For example, if a child of Hungarian parents is born in Sweden, that child enjoys Hungarian citizenship. Even the United States has a form of jus sanguinis in that the children of American citizens born abroad are citizens at birth, though it is contested whether or not this means “natural born” or “naturalized at birth.”

The American government can take jus soli very seriously, especially when it is politically or economically convenient for it to do so. For example, British Prime Minister Boris Johnson had to renounce his United States citizenship when the IRS came knocking on his door to collect taxes on a London apartment that he sold. Johnson was born in the United States to two British nationals and lived here for less than six months before they returned to the United Kingdom. The United States is one of the few countries to demand that its citizens pay taxes not only on what they earn in the country, but also on what they earn abroad.

Obama’s Not the First: Contesting Electability on “Natural Born Citizen” Grounds

Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesAlmost every president was born in the United States, of two parents who were also born in the United States. The exceptions are Andrew Jackson, the only president with two parents born outside of the United States, neither of whom were citizens of the United States. Jackson was born (we think) in the Carolinas to two Presbyterian settlers from Northern Ireland. Chester A. Arthur and Barack Obama are the only presidents with one parent who was a non-U.S. citizen; Arthur’s father was born in Ireland, and Obama’s father was born in Kenya. Four more presidents (James Buchanan, Woodrow Wilson, Herbert Hoover and Donald Trump) had one parent who was a U.S. citizen born outside of the United States. Additionally, Al Gore was born in Washington, D.C., which is not a state, and Charles Curtis, Herbert Hoover’s Vice President, was born in the Kansas Territory.

Democratic Party opponents of Chester A. Arthur often accused him of being born in Canada, but there was no evidence ever presented of this. While he was born in Vermont, very close to the Canadian border and his parents met in Canada, there is nothing to this day that substantiates the claim.

Charles Evans Hughes, who would later become the 11th Chief Justice of the Supreme Court, was accused of being ineligible a month after being narrowly defeated by President Woodrow Wilson. This was on the grounds that, because he was born in the United States to two British subjects who never naturalized, that he was a “native born,” but not a “natural born” citizen, this distinction once again becoming relevant.

It was widely discussed that Barry Goldwater was born in Arizona three years before it became a state, but nothing of substance ever came out of it. No serious candidate for the office of the president was born in any of the sovereign territories outside of the United States that eventually became states, such as the Republic of Texas or the Green Mountain Republic.

George Romney and Lowell Weicker were both born outside of the United States to American parents, but again, nothing much came of this at the time.

Closer to today, in the 21st century, in 2008 – but not 2000 – John McCain had his eligibility officially challenged in a lawsuit filed by Fred Hollander. McCain himself claims that he was born in the Panama Canal Zone, which was an unincorporated territory of the United States, and thus not the same as being born in an incorporated territory such as the Kansas or Arizona Territories. Others have alleged that McCain wasn’t born in the Canal Zone at all, but in the Republic of Panama. While his parents were both U.S. citizens, the crucial question is whether or not he was a natural born citizen or retroactively naturalized at birth by statute. The official documentation at the time declared that children born in the Canal Zone were American nationals, but not American citizens. Rogers v. Bellei found that children born to American parents outside of the United States are not, in fact, automatically declared citizens, though they might be if other requirements are met.

Barack Obama was widely believed to have been born in Kenya, not the United States, in large part probably due to his own statements on the matter – both a former literary agent and a college yearbook declared that he had been born in Kenya. However, his birth certificate has been seen and a newspaper birth announcement would have been very difficult to retroactively fake. Every legal challenge to his candidacy ended in failure and, of course, he served two terms as America’s drone bomber in chief and the best weapons salesman alive.

Ted Cruz was born in Canada to an American mother and a Cuban father who later naturalized. There has been much disagreement about whether or not Ted Cruz was a natural born American citizen, with everyone from Harvard Law scholars to perpetual Obama citizenship challenger Orly Taitz declaring that they did not believe he was eligible, but many other eminent legal scholars believing that he was. Several of his 2016 primary challengers questioned his eligibility. There have been a number of legal challenges to his ballot status, all of them unsuccessful.

Both Marco Rubio and Bobby Jindal’s candidacies were challenged on the basis that, while they were born in the United States, neither of their parents were citizens at the time, bringing us back to the potential distinction between being “native born” and “natural born” citizens. Once again, lawsuits were filed, but none were successful at getting either man removed from the ballot. Similar questions were raised about Kamala Harris, but no legal challenges were mounted. Harris dropped out before a single vote was cast.

Tulsi Gabbard represented a situation similar to that of John McCain. She was born in American Samoa, an American territory where children born do not automatically acquire American citizenship. Both her parents were U.S. citizens at the time of her birth.

Mostly in response to the controversy surrounding Barack Obama’s birth, two states, Georgia and Missouri, introduced bills requiring candidates to prove either citizenship (in the case of Georgia) or natural born citizenship (in the case of Missouri) to be eligible for ballot access in the state. Neither of the bills was passed into law. Other states saw bills requiring birth certificates for ballot access introduced including Connecticut, Indiana, Iowa, Kansas, Maine, Michigan, Montana, Oklahoma, Tennessee and Texas. None of these states saw the bills become law.

On the flip side of things, Hawaii, the birthplace of President Barack Obama, passed a law allowing the state to ignore repeated requests for the same document, probably in response to frivolous requests for Barack Obama’s birth certificate.

Birthright Citizenship vs. Natural Born Citizenship

The term “natural born citizen” is often conflated with birthright citizenship, the latter being a probably erroneous idea that anyone born on United States soil is automatically a citizen and a natural born one at that.

The 14th Amendment represents the legal bedrock of the claim that anyone born within the borders of the United States is a citizen. But the express intention of the 14th Amendment is to grant American citizenship to freed slaves and their descendents. Even Native Americans, who were subject to tribal authority, weren’t considered to be American citizens until much later.

The notion that anyone who is born here is granted citizenship, regardless of jurisdiction or other citizenship, is effectively a form of open borders.

The claim is this: In the language about to whom natural born citizenship applies, “subject to jurisdiction” means anyone under the jurisdiction of U.S. laws. This, of course, applies to anyone who happens to be in the United States at any given moment. But this is where the other clause comes into play: “not owing allegiance to anybody else.” What’s more, Senator Jacob Howard of Michigan explicitly said that those were excluded who were “born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

This excludes a significant percentage of alleged American citizens born in the United States – because if there is another jurisdiction involved, they are not born American citizens at birth and must be naturalized, just the same as if they were born in their own country. Birthright citizenship is, in practice, in the words of Constitutional scholar Edward Erler, “a magnet for illegal immigration.”

More than anything, the amendment was to give citizenship to freed slaves as well as establish the supremacy of the federal government in terms of citizenship. This is because, using the precedent established in the Dred Scott case, states argued that they had the right to decide who was and was not a citizen and that freed black slaves were not citizens. Dred Scott was arguably the event that set the nation on an irrevocable path toward civil war. However, even after the War Between the States, it remained the law of the land. Thus, a Constitutional Amendment was required to change that law.

This also means that the claim that opposition to birthright citizenship is “racist” is spurious indeed. The entire purpose of the 14th Amendment is to grant citizenship to black Americans. Even Democrats such as Harry Reid agreed with the sentiment in 1993, when he introduced a bill into the United States Senate to end birthright citizenship, but it has increasingly become an article of faith among Democrats in the United States that America belongs to the entire world rather than just Americans.

Bills clarifying what “natural born citizenship” means, largely at the expense of foreign “paper citizens,” are introduced into every Congress, but don’t get far.

Changing the Landscape

Natural Born Citizens: Understanding Who Can Be POTUS in a Nation Beset By Divided LoyaltiesAll told, there are between 300,000 and 400,000 children born in the United States to illegal aliens every year. This is approximately 8 percent of all births in the United States. Approximately four million children of illegal aliens were living in the United States in 2009, with an additional 1.1 million born abroad to illegal alien parents.

So how would we go about changing the landscape of birthright citizenship in the United States? The good news is that because this is a simple matter of statute, it can also be changed as a simple matter of statute. There is no need for a Supreme Court decision or a Constitutional Amendment at this time.

It’s true that such a statute would be legally contested – what isn’t in a world where anyone can go running to the Ninth Circuit Court of Appeals? But the fact that court shoppers would flock to their favorite grievance court is no reason to not attempt to clarify what is already the law of the land: that not everyone who happens to be born on American soil is an American citizen.

The bad news is if there is bipartisanship on one subject in America, it is on open borders. The Democrats like the reliable voter bloc and both parties like the cheap labor. More good news is that there is nothing preventing the president of the United States from issuing an executive order on the matter and seeing how it plays out in the courts. Indeed, President Donald Trump has suggested that he would do just that.

Birthright citizenship as it currently exists presents two problems: First, a decline in social cohesion. In Bowling Alone, much to his dismay, Robert D. Putnam found that there was no greater indicator of low social trust than a large immigrant population. But we are also degrading the meaning of citizenship. As America grants citizenship to anyone capable of crossing a border, we are allowing massive foreign influence in our elections and sliding deeper into the realm of tyrannical pure democracy.

Any attempts to brand opponents of birthright citizenship as “racists” are foolish for a number of reasons. Birthright citizenship was originally for freed black slaves, but no group of people have suffered more thanks to mass migration than black Americans. No other group would benefit more from a more robust and restrictive immigration regime.

Unfortunately, President Trump suggests a lot of things and this was one that went nowhere. But an executive order clarifying who is and is not a natural born citizen would go a long way. While it might not settle the question from a legal or philosophical standpoint, it would force federal agencies to distinguish their treatment of natural born citizens and everyone else.

Sam Jacobs
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Sam Jacobs

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