Vin Suprynowicz

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In the July issue of “Imprimis” — an outreach publication of Michigan’s free-market-oriented Hillsdale College — Edward J. Erler, professor of Political Science at California State San Bernardino, challenges the prevailing wisdom that the 14th Amendment bestows “birthright citizenship” on the newborn child of any illegal alien who can manage to avoid deportation long enough to give birth — usually in a taxpayer-funded hospital.

The 14th, adopted in 1868, was intended to make formal what the Civil War had accomplished de facto — the recognition that the former slaves were now citizens of the United States, with the full rights thereof. Thus (alongside some pretty odd stuff, including a provision that “The validity of the public debt of the United States … shall not be questioned”) the 14th instructs us that “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.”

Long considered uncontroversial — though just as long ignored in many of its implications (If the states are forbidden from infringing my federal rights, how can I be obliged to acquire a state “permit” to carry a concealed weapon?) — the 14th is now believed to have created that obstacle to deportation of illegal immigrant women and their families known as the “anchor baby.”

The young mom may not be a citizen or even a legal resident, but the newborn is considered to be both: The newborn thus cannot be expelled, and our sense of common decency makes it difficult to envision expelling the mother but not the child.

But what’s that clause about “subject to the jurisdiction” doing in there, Professor Erler asks in his new paper, adapted from a speech delivered in Phoenix back on Feb. 12.

“We have somehow come today to believe that anyone born within the geographical limits of the U.S. is automatically subject to the jurisdiction,” notes professor Erler. “But this renders the jurisdiction clause utterly superfluous and without force. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would simply have said that all persons born or naturalized in the United States are thereby citizens.

“Indeed, during debate over the amendment, 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.”

It was a matter of allegiance, Sen. Howard insisted. The citizenship clause excludes not only Indians but also “persons born in the United States who are foreigners, aliens (or) who belong to the families of ambassadors or foreign ministers.”

Did he say “aliens”?

Thus, professor Erler demonstrates, “ ‘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. …

“It is absurd, then, to believe the Fourteenth Amendment confers the boon of American citizenship on the children of illegal aliens,” Professor Erler continues. “Nor does the denial of birthright citizenship visit the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. are not being denied anything to which they have a right. Their allegiance should follow that of their parents during their minority.

Furthermore, it is difficult to fathom how those who defy American law can derive benefits for their children by their defiance — or that any sovereign nation would allow such a thing.”

Nor has any Supreme Court decision ever squarely addressed this issue, the professor asserts.

U.S. vs. Wong Kim Ark, 1898, is often cited. And that case was wrongly decided because it confused the old birthright subjecthood of English common law — necessarily rejected by the Declaration of Independence, since English common law considered rebellion against the king to be a capital offense — with the new concept of consensual “citizenship,” the professor argues.

In any case, Wong Kim Ark is not on point because it dealt with the citizenship of a child born to LEGAL resident aliens, an entirely different matter from a mother who gives birth after having snuck into the country without permission, reduplicating her refusal to subject herself to the laws and jurisdiction of this country every day as she misrepresents and perjures herself by presenting fake documents in order to work, drive, sign up for utility services, and so on.

“The constitutional grounds for the majority opinion in Wong Kim Ark are tendentious and it could be easily overturned” by adopting the arguments contained in the powerful dissent by Chief Justice Fuller, Professor Erler asserts. But in any case, “Repeal of the current policy of birthright citizenship for the children of illegal aliens would not require a constitutional amendment.”

His evidence? The Congress in 1923 made a universal offer to American Indians that they could become U.S. citizens if they wished. This was done by simple legislation, without any Constitutional amendment, Professor Erler points out. The Congress “could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.”

The European Union “is well on its way to becoming an administrative tyranny,” Professor Erler points out. Nor would any homogeneous world state ruled from Brussels or The Hague or East 42nd Street — the dream of the “no more borders” crowd — be a constitutional democracy. Rather, it would be “the administration of ‘universal personhood’ without the inconvenience of having to rely on the consent of the governed,” the professor warns.

Because no supernational government ever has or is ever likely to protect constitutional democracy, “The doctrine of birthright citizenship and the acceptance of dual citizenship are signs that we in the U.S. are on the verge of reinstituting feudalism and replacing citizenship with the master-servant relationship,” Professor Erler warns. “Unless we recover an understanding of the foundations of citizenship, we will find ourselves in a world where there are subjects but no citizens.”

Imagine. Why, in such a world, local cops would give illegal aliens a “Get out of jail free” card rather than hauling them in after a crash, but would take the side of invading federal agents with no demonstrated local jurisdiction in any dispute with a local citizen.

In such a world, we’d be told endlessly elastic federal “species protection” laws overrule our local property rights, including adjudicated state mining and grazing rights. We could be branded “trespassers” on our own lands!

In such a world, judges would draw their salaries from the same place as cops and prosecutors, and — instead of granting us a presumption of innocence — would refuse to even see you on your scheduled court date, siding with cops who lurk in ambush or even robot “red light” cameras, finding citizens guilty of traffic and other “minor” infractions (on nothing more than a government agent’s or even a robot’s word) 99 percent of the time, fattening their courthouse coffers and helping pay their own salaries with the resulting river of revenue.

All pretty far-fetched, eh?