Judge Napolitano: #DonaldTrump Proposal to End Birthright Citizenship is Unconstitutional

Judge Napolitano: #DonaldTrump Proposal to End Birthright Citizenship is Unconstitutional

Judge Napolitano: #DonaldTrump Proposal to End Birthright Citizenship is Unconstitutional

On last night’s Kelly File, Judge Andrew Napolitano addressed Donald Trump’s newly-released plan to tackle illegal immigration, and, consequently, the thin-skinned Trumpster might just have himself a new Twitter Target. First, here’s a snippet of what Trump said on NBC’s Meet the Press this past weekend about his plan for mass deportation:


Oops. Not so fast. Here’s Judge Napolitano’s take:

Naturally, the reactions to Trump’s plan were all over the map, from breathless cheers, to accusations of economic catastrophe, to charges that Napolitano was flat-out lying by none other than Trump’s biggest cheerleader, Ann Coulter:

Er, I think she missed the point. In case you need a refresher, you can familiarize yourself with the origin and text of the 14th Amendment here. One thing is for certain: No constitutional amendment can be altered by any president, regardless of how wealthy and powerful he/she may be. And, Ann, since you made a mockery of the abortion issue, front and center in the wake of the abhorrent Planned Parenthood videos, I think I’ll throw my chips in with the constitutional law professor on this one.

Senator Jeff Sessions (Photo Credit: American Liberty PAC)
Senator Jeff Sessions (Photo Credit: American Liberty PAC)

Senator Jeff Sessions—respected by conservatives nationwide—assisted Trump in crafting his immigration plan. Since the proposed end to birthright citizenship is an obvious violation of the 14th amendment, it’s curious that Sessions would sign off on it. Here’s what he had to say last night:

But he didn’t address the 14th Amendment issue that Judge Napolitano points out. Given that he’s generally held in high esteem, it’s a question Sessions should answer. That said, the current POTUS has set a solid precedent for repeatedly violating our constitution and his oath of office to uphold it. Ad nauseam. And proposals like this may very well be the inevitable consequence of our cowardly and lazy representatives not doing a darned thing about it.

At the very least, Donald Trump has managed to tick off both sides of the immigration debate, including the squishes in the GOP, and those who slinked into our nation illegally and brazenly demand citizenship. Even if much of the proposal lands in the waste bin, enforcing our existing laws, and once and for all securing our porous borders, would make a world of difference in the invasion of foreigners that has spiraled out of control under the current watch of the careless Coyote in Chief. Even if Trump is little more than a one-topic wonder, the critical issue of illegal immigration has been brought to the forefront of our political discourse, and forced the five gazillion GOP candidates to address it, albeit most having been drug by their hair, kicking and screaming, to the conversation. I’m no Trump supporter, but for that reason alone, I begrudgingly give a handful of kudos to The Donald.

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  • Wfjag says:

    Actually, Trump may be correct. The doctrine of “birthright citizenship” comes from a footnote in an opinion by the late Justice Brennan. It was not a holding, and did not analyze Congressional intent behind the “subject to the jurisdiction” phrase in the 14th Amendment. That phrase was extensively explained in The Congressional Globe (predecessor to the Congressional Record). It was meant to ensure that the former slaves and their children were citizens, since although slaves they had always been subject to the jurisdiction (e.g., legal authority) of the U.S. government. However, the children of citizens of other governments (e.g., American Indians, Chinese laborers, children of foreign Ambassadors) would not be U.S. citizens merely because they were born in the U.S.
    The real dispute is between “judicial supremacy” and “Constitutional supremacy”. The former is, to paraphrase the late Justice Jackson, that the Constitution means what 5 people say it means, even if they are wrong. The latter, was explained by Senate candidate A. Lincoln, who explained that he understood what the Supreme Court held in the Dred Scott decision; but, the Executive and Legislative branches were co-equal and also could interpreted the Constitution, and refuse to obey the Supreme Court and correct it when it was wrong.
    I don’t think that Trump is a Lincoln. However, he may have opened the debate to considering what the citizens should do to take back their power and re-establish that the powers of government are limited to the express grants of power in the federal and states’ Constitutions.

    • Marybeth Glenn says:

      I understand what it was “meant” for, however the text is quite simple:

      14th Amendment: “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.”

      Civil Rights Act of 1866: “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.”

      Ann Coulter was wrong on this issue. There was no 1982 contrivance, and the attached gives a great overview of the issue.

      I would argue that we tell others that the 2nd Amendment is clear, and not simply meant for muskets. If you read one amendment as clear, and another as skewed by context, aren’t we doing exactly what the left has done?


      “Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to African Americans and also to most persons born in the United States. In an 1898 decision, United States v. Wong Kim Ark, the United States Supreme Court made clear that U.S.-born children of aliens were U.S. citizens regardless of the alienage and national origin of their parents, with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation forces of a foreign nation”

      If Ann and Trump want an Amendment, that’s fine, the problem is that they are denying the need for one, and that simply won’t fly. I don’t see them, in any situation, reinterpreting the Constitution through the Legislative branch.

      • Rick Caird says:

        Since it has never actually been decided that just by being born of parents who are here illegally makes one a citizen, it makes great sense to pass legislation that such persons are not subject to the jurisdiction of the United States but rather to the jurisdiction of the the country of which they are citizens due to the citizenship of their parents and let the Supreme Court rule on that.

  • Piroko says:

    In 2004, the Republic of Ireland passed the 27th Amendment of the Constitution of Ireland, ending “jus soli”.

    It passed with 79% voting in favor.

    Laws can be changed.

    • Jodi says:

      I don’t think anyone’s arguing that amendments cannot be changed. But they cannot be changed willy nilly by a POTUS, or even via a fancy new federal law. And that seems to be what Trump thinks he can do. I don’t see anywhere where he’s advocating for a new amendment, etc. I’d love to see him talk about it to prove he understands how the process works. And few, if any, have asked him to clarify. The current POTUS has set quite the precedent for future presidents, hasn’t he!

      • A goon says:

        I think you’re reading a lot into silence and need to get out more.

        Let us suppose that Trump is elected in a Reagan ’84 style landslide. Unlikely, but at this point nobody should rule it out as impossible. If that happened, with a candidate who is openly a radical nationalist about immigration, it will send a VERY powerful message to both parties, and we’ll get that amendment.

        • Jodi says:

          “I think you’re reading a lot into silence and need to get out more.”

          Are you suggesting we do the Hope and Change thing again, and NOT demand that our potential president show an understanding of the Constitution and the Bill of Rights, and a commitment to that which they swear an oath to uphold?

          • A goon says:

            Sure. We gave the radical left a chance at Hope and Change.

            It’s only fair we give the radical right the same courtesy.

  • GWB says:

    I think I’ll throw my chips in with the constitutional law professor on this one.

    As far as Judge Napolitano, that would almost always be a poor choice, Jodi. The man has about as good a grasp of the constitution as he does of leaf molds.

    Try re-reading that text. See the words “subject to the jurisdiction thereof”? If they are here illegally, they are not truly “subject to the jurisdiction thereof”. Yes, they are criminally within our jurisdiction, but they are not legally within the jurisdiction.

    This is an important distinction. A law could easily strip that phrase of any application to illegal aliens. A legal alien here could give birth to a citizen, but an illegal alien could not.

    Also, notice the wording of the Supreme Court decision in the text Marybeth quotes:

    with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation forces of a foreign nation

    All illegal aliens are part of an occupation force of a foreign nation. (Note the language used of a “reconquista”.) Therefore, their children are NOT American citizens by birth.

    Lastly, since Marybeth tossed out language related to a Supreme Court decision as to the definition of constitutional provisions, let’s remember that Judicial Supremacy is not a constitutional concept. Just because the Supreme Court says it’s constitutional doesn’t make it so. That sort of thinking is what brought us to the point of having black-robed masters telling us we must approve of homosexual “marriage”. Truth is not arbited by these folks – at least not in the republic our Founding Fathers envisioned.

    • GWB says:

      BTW, note that if one of these illegal aliens is charged with murder, we are expected to call the embassy of their home country to ensure their rights are secured in accord with international law. That shows that they are NOT “subject to the jurisdiction thereof”.

      • Jodi says:

        To clarify, my wager was between Nap and Coulter, who forever lost me at abortions in the White House. Appalling.

        It’ll be interesting to see what arises going forward. As I said, I applaud him for dragging just about everyone into a conversation that is long overdue. I don’t believe it would have been this substantive otherwise.

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