Amendment 14, Sec. 1:
“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.”
Here is my question: If Trump gets his way and deletes the birthright citizenship clause, will he be taking away my right to be a citizen in the United States?
In the many articles I have read concerning this provision in the Constitution, I have not found any that actually deals with this question. The most comprehensive, “The 14th Amendment Does Not Mandate Birthright Citizenship” by Andrew C. McCarthy, which focuses on the birthright of children born in the U.S. of undocumented aliens. McCarthy argues that because the Constitution does not clearly state who is and is not a citizen, that decision goes to the individual states. This, he argues, was the intent of the Immigration Law of 1795, giving the states the right to declare a person a citizen if they met certain conditions. One of these conditions was the person had to be “a free white person…”
McCarthy continues to argue that because of the statutes passed by Congress and signed by the president, birthright citizenship only deals with “the policy of granting American citizenship to children born in the United States to alien parents who are not legally present here.” The Constitution does not argue this point.
He argues that the “amendment (was) ratified in 1868, a time when there was no federal-law concept of illegal aliens.” The Amendment was ratified to give newly freed Blacks all of the right or every other American citizen.
Those laws would not kick in until the Immigration Act of 1891 when some restrictions were placed on those who could enter the United States legally and who may become citizens. Excluded from entry and/or citizenship included “idiots, insane persons, paupers and those likely to become a public charge, persons suffering from a loathsome or dangerous contagious disease… convicted of a felony… or misdemeanor…” etc. What I believe to be an important point was the inclusion of those who did not pay for their transportation from overseas themselves.
According to FindLaw.com, “Although rare, it is possible for a naturalized U.S. citizen to have their citizenship stripped through a process called ‘denaturalization.'”
FoxNews’ Tucker Carlson said it best when he said that “In fact, as a legal matter, it is an open question. The Supreme Court has never ruled on it.”
But again, as stated in a Google search, “If you are born a citizen of the U.S. then there is simply no way for the government to take it away.” This alludes back to the 14th Amendment granting citizenship to all born in the United States regardless of the nationality of the parents.
What the president is arguing that so-called “anchor babies” of those illegally entering the U.S. should be denied citizenship. It is unknown if this would include children born in the United States by women traveling legally as “Birth Tourists.” The president has not directly addressed the growing number of women entering the U.S. legally to have their children here. According to NBC News, the two most active countries for “Birth Tourism” are Russia (to Miami) and China (Southern California). As long as the women did not lie on their Visa or Passport application (a criminal act), the child is considered a born American.
Back to the original question: Would the president’s order to deny citizenship to born citizens take away my citizenship?
As far as I know, my paternal grandparents and maternal great-grandparents entered the United States legally. My father was born in Hempstead, New York and I was born in Mineola, New York. The 14th Amendment gives me the right to be an American citizen subject to my birth.
In Afroyim v. Rusk, 387 U.S. 253 (1967), it was found that “(t)he Fourteenth Amendment’s provision that ‘All persons born or naturalized in the United States . . . are citizens of the United States…’ completely controls the status of citizenship, and prevents the cancellation of petitioner’s citizenship.” The ruling continued:
“Because neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired, petitioner contended that the only way he could lose his citizenship was by his own voluntary renunciation of it.”
It appears that if the president were to deny citizenship to those born in the United States by undocumented citizens or foreign nationals coming to the United States for the sole purpose to give birth, he would have to amend the 14th Amendment. It was also stipulated in Afroyim that the only way to lose citizenship is by renouncing citizenship, which I have not.
You and I cannot lose our rights as American citizens under an Executive Order by the president or act by Congress. We would have to denounce our U.S. Citizenship.
It, therefore, appears that in order for a child of an undocumented person to be denied citizenship would require either the applicant for entry to the U.S. lied on the passport or visa application or there is a new Amendment to the Constitution. Coming in illegally does not negate the citizenship of the child born in the US.