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UNC law professor: Trump 'dead wrong' on citizenship

Posted August 21, 2015
Updated August 22, 2015

— Republican presidential candidate Donald Trump continues to draw fire nationally for comments challenging birthright citizenship for the children of illegal immigrants.

Trump told Fox News host Bill O'Reilly earlier this week that "very good lawyers" agreed with his position that children born in the United States to those who entered the country illegally do not have American citizenship.

"We have to start a process where we take back our country," Trump said on the O'Reilly Factor on Tuesday. "Our country is going to hell."

Theodore Shaw, a University of North Carolina at Chapel Hill law professor and director of the UNC Center for Civil Rights, said that, regardless of Trump's position, the 14th Amendment of the U.S. Constitution is clear on birthright citizenship.

"The children of illegal or undocumented immigrants are citizens of the United States if they are born in the United States. Period," Shaw said. "The argument that Donald Trump is making is one that is ill informed, and he's just dead wrong."

Shaw added that he doesn't think "there are any good lawyers, or in fact any good law students, who would make that argument."

Ratified in 1868, the 14th Amendment directly countered the U.S. Supreme Court's Dred Scott decision, which said black people could never be American citizens.

Shaw said it was "perhaps the most insidious decision the Supreme Court handed down."

U.S. courts have consistently upheld challenges to the amendment over the last 150 years, he said, making any question of citizenship for those born in America to illegal immigrants "an open-and-shut case."

"That distinction with respect to the birthright citizenship clause doesn't mean a thing," Shaw said. "If someone is born in the United States, no matter what the status of her or his parents is, that person is a citizen of the United States."

Trump isn't the only GOP candidate to oppose birthright citizenship for illegal immigrants. Former U.S. Sen. Rick Santorum, retired surgeon Ben Carson, Govs. Bobby Jindal and Scott Walker and U.S. Sens. Lindsey Graham and Rand Paul have all said they want to end it.

Paul even introduced legislation in 2011 that would deny birthright citizenship to children of illegal immigrants born in the U.S.

But Shaw said the country could deny birthright citizenship only if the Constitution itself is changed.

"Legislation cannot change the Constitution, cannot amend the Constitution. The Constitution is the supreme law of the land," Shaw said. "There's only one way the birthright citizenship clause can be abandoned, and that is by Constitutional amendment."

46 Comments

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  • Terry Lightfoot Aug 24, 2015
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    Little Honey Pointer...( a dog? ) if you have ever been in court in Wake County - then your lawyer is probably either from Campbell or UNC. If you haven't - then you earn a gold star.

  • Terry Lightfoot Aug 24, 2015
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    NO NO NO...you are dead wrong on all counts. You speak nonsense

  • Terry Lightfoot Aug 24, 2015
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    Wrong Bubba Jim on all counts.

  • Terry Lightfoot Aug 24, 2015
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    You are so wrong, it can't be "re-worded" or re- ratified - it's Constitutional, it's the Supreme law of the Land. What don't you understand about that? To remove it as law - Congress would need to pass by 2/3 vote a NEW Amendment that negates this one....not going to happen

  • George Herbert Aug 24, 2015
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    That there are so many people here arguing that Trump is correct concerns me.

  • Roy Hinkley Aug 24, 2015
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    I am not a constitutional scholar, but your citation seems way off the mark. Birthright citizenship was not at issue in Jones v Temmer.

    Trump is talking about the first clause in the 14th, not the second.

  • Terry Lightfoot Aug 24, 2015
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    Trump - the number one Whiner....quote, " I whine until I win"...so vote for Trump if you want to listen to a nasel New Yawker whiner ...no thanks

  • Wayne Boyd Aug 24, 2015
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    According to Jones v Temmer 829 F Supp 1226. Trump knows what he's talking about . This case states, The privilege and immunities clause of the 14th Amendment protects very few rights because it neither incorporates the Bill of Rights nor protects all rights of individual citizens. Instead the provision protects only those rights peculiar to being a citizen of the federal government. It does NOT protect those rights pertaining to state citizenship.
    So looking at the big picture and the flooding of America with immigrants who are being paid to begat more and more government citizens without Constitutional Rights. In less than 100 years there will be no America, no Constitution and no Freedom. Without any use of force whatsoever the Greatest Nation the world ever saw will vanish and no one will know where it went,
    A 14th amendment citizenship is ok for a freed slave or an immigrant, but children born to them should enjoy the same Constitutionally protected freedoms I enjoy.

  • Terry Lightfoot Aug 24, 2015
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    So - according to this Senator, Bobby Jindal would be an 'ankor' baby and not a citizen of the United States.

  • Bubba Jim Aug 24, 2015
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    quotation from Citizenship Clause author Senator Jacob Howard (R-MI) during the debate on the 14th Amendment 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.”

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