The American Civil Liberties Union disagrees:
Citizenship under the 14th Amendment includes those born in the United States to parents who are not U.S. citizens. This was clearly established over 100 years ago by the U.S. Supreme Court.
The Fourteenth Amendment states it clearly:
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.
Someone reading this Amendment should logically conclude that anyone born in the US, regardless of the nationality of his parents, is a US citizen. But Trump's lawyer friends say that, no, the Congress that passed the 14th Amendment intended it to apply to slaves and their children, not to the children of immigrants. Because, they say, the Congress in 1868 didn't have an immigration problem.
As with almost everything to do with racists and their beliefs, this opinion presents a false idea of history. That's how they operate. In fact, immigration was a huge issue in 1868, much bigger than slavery in the North and West. There was no concern about illegal immigrants in 1868 because immigration was uncontrolled. Whoever wanted to emigrate to the US was welcome. Even the Chinese--who were widely regarded as an inferior race--were allowed to freely immigrate because their labor was necessary for the completion of the transcontinental railroad. Between 1880 and 1920, 20 million people immigrated to the US. All of their children enjoyed birthright citizenship.
Why should we change the law now, if it has worked so well in the past? There is only one answer. Many people who declare that the Fourteenth Amendment doesn't mean what it says are avowed racists who believe that Latinos are incapable of governing themselves.
The first court test of the 14th Amendment was US v. Wong Kim Ark (1898). The Supreme Court ruled that Wong was a citizen of the US by virtue of his birth in San Francisco and could not be prevented from entering the country. Since that time, numerous court rulings have upheld this ruling and concurred that the 14th Amendment does, indeed, make all children born in the US American Citizens, regardless of who their parents are. In the early days, the acceptance of birthright citizenship was essential, since about 15% of the population came from other countries and their children were only citizens by virtue of their being born here.
Judge Posner states his viewpoint in Oforji v. Ashcroft, 354 F.3d at 621 (2003). Posner concludes that the courts cannot outlaw birthright citizenship, but the Congress may, simply by passing a law. Posner unaccountably gives as one of his arguments against birthright citizenship that the
Federation for American Immigration Reform [FAIR] estimates that 165,000 babies are born each year in the United States to illegal immigrants and others who come here to give birth so their children will be American citizensThis figure is pure fiction. Factcheck.org concludes that, while it is true that there are millions of immigrants who have children in the US, Mexicans come to the US to work, not to have babies.
According to the Southern Poverty Law Center, the Federation for American Reform (FAIR) is a hate group whose sole purpose is to severely limit immigration into the United States. Its members include avowed racists and eugenicists like FAIR founder and Board Member John Tanton, who wrote
I've come to the point of view that for European-American society and culture to persist requires a European-American majority, and a clear one at that."— John Tanton, letter to eugenicist and ecology professor Garrett Hardin (now deceased), Dec. 10, 1993
and FAIR President Dan Stein, who claimed that the 1965 immigration act
was a great way to retaliate against Anglo-Saxon dominance and hubris, and the immigration laws from the 1920s were just this symbol of that, and it's a form of revengism, or revenge, that these forces continue to push the immigration policy that they know full well are [sic] creating chaos and will continue to create chaos down the line.
These are not just the views of racial supremacists, although they are that. These are the views of eugenicists, people who believe that inferior people should be eliminated to make way for superior ones. They view Latinos as both inferior and expendable, since they want to maintain an Anglo-Saxon majority by any means possible.
Judge Posner should have known the racist basis of FAIR and he should have realized that statistics provided by them could not legitimately be relied on. Did he intend to incorporate the racist, eugenicist views of that group into the legal record? If not, he should apologize for his actions. If he did, then all of his judgments should be reviewed for racist bias and expunged from the record if necessary.