A little history. The 14th Amendment was proposed to combat laws called "Black Codes" that regulated behavior of newly freed black slaves following the War of Northern Aggression. The codes were first implemented by the Union Army occupying the former Confederate States.

Both Southern and Northern states later took up Black Codes of their own. To establish and ensure that newly freed blacks had all the "privileges and immunities" of white citizens (i.e., that they could own property, conduct business, buy and lease land and move about freely in public places), Congress passed the Civil Rights Act of 1866. When he introduced the bill, Congressman James F. Wilson said it:

[P]rovides for the equality of citizens of the United States in the enjoyment of "civil rights and immunities." What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government (protection against a monarchy). Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. The definition given to the term "civil rights" in Bouvier's Law Dictionary is very concise, and is supported by the best authority. It is this: "Civil rights are those which have no relation to the establishment, support, or management of government."

The opening clause of the Civil Rights Act of 1866 reads:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States... (Emphasis mine. – BL)

It's inconceivable that the same group of men that passed a law in Congress that excludes citizenship to people subject to a foreign power, and then overrode a presidential veto on that bill, would turn around and pass an amendment to ensure the act remained in force that granted citizenship status to people "subject to any foreign power."

Congress suspected the Civil Rights Act could be overturned or rendered unconstitutional, so lawmakers drafted the 14th Amendment in order to prevent its repeal and to give it the support of constitutional footing. But the 14th Amendment was never lawfully ratified.

The author of the 14th Amendment, Rep. John Bingham of Ohio, defended the introductory clause on House floor. He said:

I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that 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.

Senator Jacob Howard, a backer of the amendment in the Senate, expressed the framers' intent:

[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

This echoed the sentiments of the Founding Fathers who, though living in a new nation with a population consisting mostly of recent immigrants, recognized the danger of too many aliens arriving at once without the desire to assimilate into the "spirit" of the new country.

"[Emigrants] will bring with them the principles of governments they leave, imbibed in their early youth;" Thomas Jefferson wrote in his "Notes on the State of Virginia," "or, if able to throw off, it will be in exchange for unbounded licentiousness, passing, as is usual, from one extreme to the other. It would be a miracle if they were to stop precisely at the point of temperate liberty."

And writing "an Examination of the President's Message" in 1802 for the New York Evening Post, Alexander Hamilton posited that, "Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of a probability at least, of their feeling a real interest in our affairs."

I strongly oppose rule by executive order, which is an unconstitutional power grab over congress and running precedent for an imperial presidency. But this seems more an effort at nullifying unconstitutional edicts of the federal courts than a power grab. After John Adams signed legislation that made it a treasonable activity to publish "any false, scandalous and malicious writing" which became the Alien and Sedition Acts, Jefferson and James Madison drafted Kentucky Resolutions and Resolutions for Virginia that  essentially said that when the Federal government assumes undelegated powers — those not enumerated in the Constitution — those acts are "unauthoritative, void, and of no force." These came to be known as the Principals of '98.

Alexander Hamilton posited the same idea in Federalist #78, writing:

There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid."

That thought is also codified in U.S. law:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

If Trump does sign an executive order to end the practice of anchor baby citizenship, his goal may be to get the issue before the Supreme Court so it can become "settle law." At least that seems to be the case given one of his latest tweets on the subject.

The Supreme Court has never ruled on a case specifically dealing with the birthright citizenship issue, despite what the mainstream pundits and leftist echo chamber have claimed.

Yours for the truth,

Bob Livingston
Editor, The Bob Livingston Letter™

To voice your opinion, or read more on personalliberty.com, go here.