Wednesday 14A Open Comments

From Dr. Malone’s Substack:

Birthright Citizenship Will be Overturned

“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

-Section 1 of the 14th Amendment to the United States Constitution

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Section 1 of the 14th Amendment, also known as the Citizenship Clause, was ratified by Congress on July 9, 1868, and was meant to extend citizenship to freed slaves and their children.

Whether or not the 14th Amendment applied to people who were not citizens was challenged …. and the Supreme Court ruled in 1898 in a case known as “United States v. Wong Kim Ark.” This was the landmark Supreme Court ruling that determined that a child, in this case, Wong Kim Ark, born in the United States to parents who were ineligible for naturalization … was still a U.S. citizen…. This established a precedent for birthright citizenship…. The Supreme Court has not revisited this ruling, so the precedent of the Wong Kim Ark stands to this day. It all seems straightforward enough. Right? Wrong…

The fourteenth amendment clearly states that persons born in the United States must be “subject to the jurisdiction thereof.”

The question is, what does that phrase mean?

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But the truth is that the United States v. Wong Kim Ark case is very different from what has happened today. That is, the masses of illegal aliens using this legal precedent to cross the border for the purpose of having “anchor babies.” …

My opinion is that President Trump’s executive order will target those children who are born to illegal aliens, as he has said in multiple interviews.

It’s important to note that while Wong Kim Ark’s parents were legally residing in the United States, they were not eligible for U.S. citizenship due to the Chinese Exclusion Act of 1882.

Section 1 of the 14th amendment was never meant to apply to the children of people in this country illegally.

An excellent article on the 14th amendment was written in 2018, by Hans A. von Spakovsky, legal scholar at the Heritage Foundation. In that article, he explains:

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

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Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

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How this could all play out in the coming months and years:

This could be accomplished simply by applying Section 5 of the 14th Amendment. Section 5 states that: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Hence, by a simple majority, Congress can clarify the Section 1 clause of the 14th Amendment. [emphasis mine]

…we can expect that President Trump’s executive order will rely on legal scholars …

This will then be followed by Congressional action to clarify further and enforce the full provisions of section 1 of the 14th Amendment.

Of course, it will be challenged in the court of law, with the Supreme Court making the final determination.

The final result will most likely be a scaling back of the 14th Amendment to its original intent. It won’t happen as quickly as one might hope, but it will happen. This will alter the fabric of the United States for future generations and is critically important to maintaining the fabric and nature of American society.

Legal immigration will not stop, nor does anyone want it to. But the United States can not allow unfettered and illegal immigration. The vast majority of Americans agree on this point.

These controls start with both the closing of the border and the loophole developed by the Supreme Court ruling of 1898, which is known as “United States v. Wong Kim Ark”. President Trump is right – birthright citizenship will end because the legal precedent used to maintain this status quo is defunct. It is just a matter of time and will. President Trump has the will and four more years – so let’s get it done!