The Fourteenth Amendment to the Constitution of the United States provides in relevant part:
“Section. 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.”
PRESIDENT TRUMP’S EXECUTIVE ORDER
President Donald J. Trump’s Executive Order No. 14156, Protecting The Meaning And Value Of American Citizenship, which he signed on January 20, 2025, provides:
“Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment states: “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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.
“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
“Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
“(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.”
WAS FOURTEENTH AMENDMENT CONSTITUTIONALLY RATIFIED?
Before talking about who is right and who is wrong, was the Fourteenth Amendment constitutionally ratified in the first place?
There is a scholarly and well-researched article written by Forrest McDonald which was originally published in the Georgia Journal of Southern Legal History in 1991, and republished on April 23, 2014 by the Abbeville Institute.org. – many years before this birthright citizenship came to the fore – Was the Fourteenth Amendment Constitutionally Adopted?
Here is the link: https://www.abbevilleinstitute.org/was-the-fourteenth-amendment-constitutionally-adopted/ - searchbox
Forrest McDonald concludes: “Clearly, then, the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed. The question now becomes, so what? The critics of the 1950s and 1960s, cited earlier, called for the Supreme Court to rule that it was not a part of the Constitution. To the certain objection that such a ruling would overturn a huge body of judicial precedent, they pointed out that the Court had, in Erie v. Tompkins (1938), overturned its earlier ruling in Swift v. Tyson (1842) and with it nearly a century of case law, and that to right a long-standing wrong was more important than precedent. Perhaps. Even so, though no one ever became rich by predicting what the Supreme Court would do from one generation to another, it seems safe to predict that the Fourteenth Amendment is here to stay, despite its origins. It behooves us, however, to be aware of the Fourteenth’s history, lest similar irregularities should surround another amendment in the future.”
The birthright citizenship issue will definitely reach the Supreme Court. President Trump will raise the issue of the validity of the Fourteenth Amendment since it has not been raised squarely before.
NO ILLEGAL ALIENS OR TEMPORARY VISITORS WHEN FOURTEENTH AMENDMENT WAS RATIFIED
The Fourteenth Amendment was reportedly ratified on July 9, 1868. It was adopted to confer United States citizenship on people born in the United States of African descent. It repudiated the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which held that persons of African descent born in the United States were not citizens.
In 1868, there were no illegal aliens who crossed the border without a visa and without inspection. There were no temporary visitors who came on a student, work, or tourist visa.
Consequently, the framers of the Fourteenth Amendment could not have contemplated the existence of such aliens and give their children born in the United States “birthright citizenship”?
PRESIDENT TRUMP IS RIGHT
President Trump is right - “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States, such as the children of alien mothers (1) unlawfully present in the U.S. and (2) temporarily present in the U.S.
WONG KIM ARK AND OTHER CASES
Defenders of “birthright citizenship” cite United States v. Wong Kim Ark, 169 U.S. 649 (1898), a 6-2 Supreme Court decision, which held that a child born in the United States of Chinese parents who have a permanent domicile and residence in the United States, and are not employed in any diplomatic or official capacity under the Emperor of China, is a United States citizen at birth.
Reliance on this case by defenders of “birthright citizenship” is totally misplaced. Wong Kim Ark involved a child born in the United States of permanent residents.
President Trump’s executive order is not about children of permanent residents. It is about (1) children of mothers who are “unlawfully present in the United States,” and (2) children of mothers whose presence in the United States was “lawful but temporary”.
People who cite precedents should only cite cases which are on all fours with the case at bar. The other “precedents” cited by anti-Trump people are outliers.
CHILD OF ILLEGAL ALIEN COULD BECOME PRESIDENT
Chief Justice Melville Fuller, joined by Associate Justice John Marshall Harlan, dissented in Wong Kim Ark, warning that if ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Wow, a child of an illegal alien or temporary visitor could become President of the United States under the so-called “birthright citizenship”. Susmariosep.
Atty. Emmanuel Samonte Tipon was a Fulbright and Smith-Mundt scholar to Yale Law School where he was awarded a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on constitutional issues, immigration law, and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publishers including Thomson West and Lawyers Co-operative Publishing Co. and writes columns for newspapers. He wrote the case notes and annotations for the entire Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft-Whitney Co. (now Thomson Reuters). He wrote the best-seller "Winning by Knowing Your Election Laws.” Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: attorneytipon@gmail.com filamlaw@yahoo.com. Website: https://www.tiponimmigrationguide.com
The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.
What's Up Atty 2025 02 24 Trump is right on birthright citizenship
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