Swearer noted that many believe “If you’re born on American soil, you’re an American citizen. Period,” before citing the actual text in the 14th Amendment, which reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.”
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“The key phrase here, is, ‘subject to the jurisdiction thereof.’ It creates a second condition for birthright citizenship beyond merely being born on American soil,” Swearer said, adding that this “also raises another question: ‘Who is born subject to U.S. jurisdiction?’”
The legal fellow pointed out that the 14th Amendment “was ratified in 1868, just three years after the end of the Civil War.”
“Its purpose was to rectify the infamous 1857 Supreme Court decision, Dred Scott v. Sandford, in which the court declared that black Americans were not and could never be citizens,” she said.
Despite slavery having been abolished, this Supreme Court decision remained “the law of the land,” making it so that “black Americans were still not citizens, even though they were no longer slaves, Swearer explained.
“The 14th Amendment resolved the issue once and for all,” the Heritage Foundation senior legal fellow added, noting that newly freed slaves and their children “were certainly born subject to the jurisdiction of the United States.”
“While the 14th Amendment resolved the issue as it related to race, its authors would have been shocked to learn that we now interpret these words to make citizens of virtually anyone born on U.S. soil under all circumstances,” Swearer said.
The legal scholar then pointed to Yale law professor William C. Robinson, who explained in his 1875 legal treatise that the 14th Amendment grants citizenship only to those born within the jurisdiction and allegiance of the United States.
At minimum, this is a condition that requires lawful permanent residence in the United States, Swearer noted, adding, “This was also the original understanding of the federal government.”
In citing an example, Swearer mentioned an incident in 1890 when Irish national Mary Devereaux gave birth while awaiting immigration approval in New York.
“Authorities later denied her immigration application,” Swearer said, adding that “because Devereaux wasn’t eligible for lawful admission to the U.S., her U.S.-born daughter was not recognized as a U.S. citizen” and “both mother and child were sent back to Ireland.”
The legal fellow noted that the 1898 case United States v. Wong Kim Ark is often cited as a means for justifying universal birthright citizenship.
The case involved an incident in which Wong Kim Ark — a son of Chinese immigrants who was born and raised in the United States — was detained and threatened with deportation upon returning home from a visit to China.
Wong then sued the United States, arguing that he was an American citizen by birth, and the Supreme Court agreed.
“While this decision is often cited as proof that the 14th amendment mandates universal birthright citizenship, it proves nothing of the sort,” Swearer said, adding that the Wong decision “was meant to undo the immoral Chinese Exclusion Act of 1882.”
The Chinese Exclusion Act had prohibited Chinese immigrants from becoming American citizens, “no matter how long they lawfully lived, worked, and raised their families here,” the legal scholar explained, adding that Wong’s parents had been “lawful permanent residents.”
The Supreme Court’s 1898 decision meant, “Congress could prevent lawful Chinese immigrants from becoming naturalized citizens, but it could not subject their U.S.-born and raised children to perpetual alien status because of their race,” she added.
“Universal birthright citizenship isn’t required by the 14th Amendment’s text or historical context, it’s inconsistent with the earliest legal interpretations of the amendment, and it isn’t compelled by Supreme Court precedent,” Swearer asserted.
Alana Mastrangelo is a reporter for Breitbart News. You can follow her on Facebook and X at @ARmastrangelo, and on Instagram.
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