This is a topic which is now a huge item of conversation given the bombshell announcement by President Trump that he’s working on an executive order which will begin denying “anchor babies” citizenship in the United States. Trump let that cat out of the bag during an interview with Axios which will air Sunday on HBO. Here’s the clip…

Love him or hate him, one thing which is remarkable about Trump is what a change agent he is. Prior to his becoming president nobody ever had the stones to do anything like what he’s planning.

And because nobody ever had said stones, despite what some say this is not a matter of settled law.

First of all, the 14th Amendment doesn’t actually govern the citizenship rights of children of illegal aliens – at least that’s an interpretation held by some which hasn’t been disproven to date.

The text of the 14th Amendment reads as follows…

“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.”

“…and subject to the jurisdiction thereof” is the operative phrase here, because there are two different interpretations of what that means. The common interpretation which has been in practice for decades is that it means anybody who is born in the U.S. is therefore subject to its jurisdiction. And that might well be the correct one.

Another interpretation is the one Trump will use, which is that the clause is intended to differentiate between people who are here legally and who have status either as citizens, green card holders, diplomats, etc., and people who are illegals. This might seem a crazy example, but consider the 1984 film Red Dawn, in which the Soviet Union and its allies invade the United States. What if the Soviets brought along female soldiers as part of their invasion force, and some of those females were to have children of Russian or Cuban fathers on American soil? In the movie American forces end up driving the invaders out – but would those kids be able to claim American citizenship simply because they were born in Idaho or Colorado?

That’s the extreme, absurd example testing the current interpretation of the 14th Amendment. Trump is clearly using anchor babies to find the real limit of it.

Let’s understand that the purpose of the 14th Amendment was to extend the rights of citizenship to all of the freed slaves in the United States in the knowledge that many of the southern states would attempt to deny those rights if something wasn’t done. From a 2007 discussion of the issue at The Federalist Blog comes some history of the legislative debate behind the amendment’s passage…

Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution. The reason for this is because the authority remained with each State to make rules that distinguished alien from citizen.

The distinction was important because aliens could been prevented from owning property, voting, inheritance, doing business, etc.

Madison made it clear rules of who is a citizen or alien properly belonged with each State when addressing a contested South Carolina Election of Rep. William Smith in the House of Representatives in 1794. Madison said the question of whether Rep. Smith had been a citizen of the United States for seven years at the time of the declaration of independence rested entirely with the Constitution of South Carolina:

From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. Smith was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case . . . It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.

Therefore, in 1866 the understanding of this question was that federal law flowed up from the states. You can see why there would appear to be a need for a constitutional amendment on the issue. Where things got complicated was that American interpretation of citizenship is a bit different than that of common law in Europe – at common law, the theory is essentially that if you’re born, say, in England, to English parents, then you owe allegiance to the English king whether you like it or not, and this “King’s Allegiance” governs your existence. Aliens whose parents are not subjects of the king remain aliens.

But this country, being a nation of immigrants such as it is, wasn’t quite on board with such an interpretation. And states differed on how far to go in straying from it. Generally speaking states were looking for aliens to establish domicile within their jurisdiction and also to renounce allegiance to foreign governments before they’d extend citizenship rights to them – and therefore to their children.

Now – here’s some contemporary legislative history going back to 1866…

Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.

Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant.

During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country – an issue he would not have raised if Congress were merely reaffirming the common law doctrine – and of course, the question of Indians.

A common mischaracterization of the debates says Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the Fourteenth Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the condition of the parents. However, this is an erroneous conclusion because they were discussing concerns over whether “race” of the parents could play a role. They were not suggesting locality of birth alone was to be the sole requirement of citizenship under the Fourteenth Amendment. Additionally, this discussion appeared before the chief authors, Senators [Trumbull] and Howard, provided the proper intended operation of the language.

Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.

Trumbull was pretty fervent about the question of allegiance. “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens,’” he said. “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

And Howard agreed. “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons,” he said.

So clearly the drafters of the amendment were not envisioning granting citizenship to anchor babies. They envisioned citizenship for the children of immigrants who were knowingly, voluntarily subjecting themselves to the laws and jurisdiction of this country to the exclusion of any other.

That obviously has meaning. How can you say you’re knowingly, voluntarily subjecting yourself to the laws and jurisdiction of this country when you’re breaking our laws by coming here illegally? The very act of crossing the border illegally invalidates any such claim.

And by that interpretation anchor babies wouldn’t be eligible for citizenship. Not unless you naturalize, or by some degree legalize, their parents and cure the flaw that illegal border crossing created.

This has all been papered over, largely because for a long time it was convenient – particularly for Democrats looking for voters, but also by business looking for cheap labor – to ignore the problem. But with a majority of the country now wanting to rein in illegal immigration, revisiting it is a legitimate item of public debate.

So what Trump would be doing on the question of anchor babies would be to force a legal fight over the issue – the first of the anchor babies denied citizenship by ICE is going to immediately sue, and then we’ll be off on the road to the Supreme Court to ultimately decide the question unless Congress were to pass a law specifically choosing an interpretation.

And given the high profile this issue has attained in recent years Trump is actually doing us a service by reopening this debate – regardless whether he turns out to be right.

He’s going to get called a racist again, of course, though that usual slur is made somewhat ridiculous given that some of the more exotic suppliers of anchor babies lately turn out to be white women from Russia.

A growing number of pregnant Russian women have been traveling to Miami to give birth, with the wealthier ones buying birth tourism packages and those of more modest means putting together DIY packages. Giving birth in the U.S., and Miami in particular, is a status symbol in Moscow, NBC News reports, and the big draw is birthright citizenship. All children born in the U.S. are U.S. citizens. “The child gets a lifelong right to live and work and collect benefits in the U.S.” NBC News says. “And when they turn 21 they can sponsor their parents’ application for an American green card.”

The president is correct when he calls the effects of the current interpretation “ridiculous.” No sane country would allow foreigners to have a kid here for the sole purpose of hooking said kid up to the most generous welfare state in the world without swearing allegiance to this country or contributing anything to our society.

If nothing else, this will create a debate we should have in America, and perhaps give us the opportunity to find some practical consensus around the issue. We did have one some 150 years ago when the 14th Amendment was passed and ratified – Trump is only attempting to return us to it.