Understanding the 14th Amendment

A political science professor, an amateur, and a former president of Mexico explain the citizenship clause of the 14th Amendment to the U.S. Constitution

~6 minute read

NOTES to readers on the original Substack article: 1) Another article on this subject has been published here which I recommend. There are a couple of points in my article that are still unique, but the one referenced above is well researched and written. 2) When my article was first written, the available information from the initial Trump transition announcement seemed to be short of the information put out by the administration recently (after the executive directive). It now appears they are aware that the typical understanding of the history of birthright citizenship does not translate to a proper interpretation of the original intent of the Congress that drafted the 14^th Amendment. Therefore, some of my comments in the article do not properly represent the administration's view on the matter as known today (for this issue).

In his efforts to get illegal immigration resolved and/or reversed, President Elect Trump has recently hinted of an executive action to repeal birthright citizenship. This seems to indicate a multiple level of misunderstanding the Constitution of the United States. First is his premise of overriding a Constitutional provision via executive or legislative action. When will our elected officials stop with the efforts to ignore or rewrite a Constitutional provision without taking it to the States?

Secondly, Trump could accomplish his goal by ABIDING by the 14^th Amendment. In an excellent article by Professor Edward J. Erler in July of 2008, he helps us to understand the original intent behind the citizenship clause. Section one of the Amendment (which contains the citizenship clause) begins as, "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." Professor Erler states,

“…during the debate of the [14^th A]mendment, Senator Jacob Howard of Ohio, the author of the citizenship clause, attempted to assure skeptical colleagues that the new language was not intended to make Indians citizens of the U.S. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, rose to support his colleague, arguing that ‘subject to the jurisdiction thereof’ meant ‘not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.’ Jurisdiction understood as allegiance, Senator Howard interjected, excludes not only Indians but ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ Thus ‘subject to the jurisdiction’ does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S.”

In the past there has been support from the Mexican government itself for asserting this argument as applied to illegal aliens in the U.S. of any nationality. Former Mexican President Felipe Calderon helped us better understand this provision of the 14^th Amendment in 2008 while attending the opening of a Mexican Consulate in New Orleans. A report of the event notes,

“At the opening of the consulate, President Calderon, said Mexico wants to assist and protect its citizens in the states of Louisiana and Mississippi that the consulate will serve,” and further quotes the former president: “With the reopening of this consulate, we will be able to guarantee those Mexicans who live and work in Louisiana and Mississippi that they will have the support of the Mexican government. It is my commitment that no matter where there is a Mexican citizen, he or she will also have the support of our government.”

Author asserts that these are basically re-statements of the Constitutional provisions as explained in Professor Erler’s article, courtesy of the then president of Mexico.

In McCulloch v. Maryland, Chief Justice John Marshall, in addressing a lack of legalese in the Constitution, stated that if it had been worded with much legal language that it "could scarcely be embraced by the human mind. It would probably never be understood by the public.” Marshall's quote leaves We the People open to our own amateur interpretations of the Constitution. However, I fail to understand why an amateur such as this author, and a former President of Mexico, should have to provide the background to a presidential transition team to help them be schooled in the Constitution. There already exists within the provisions in the Constitution to accomplish at least part of what Trump wants to do. There is NO reason to even hint that they will go outside the Constitution to accomplish a campaign promise, and author hopes they desist from doing so in the future regardless of ANY issue of governance.

Methinks the incoming administration is in great need of competent U.S. Constitutional guidance.

Photo credit: geraldfriedrich2 at Pixabay

To see a list/read other articles by this author, visit

https://steveosborn.substack.com/archive