Is it Time to End Birthright Citizenship?

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baby america child

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…” (14th Amendment)

The United States is one of only 30 countries that automatically confer citizenship on any child that is born within their borders. This means that the child of an illegal crosser who is delivered on the U.S. side of the border is automatically an American citizen. It also means that American citizenship is automatically conferred on the U.S.-born children of tourists, temporary visitors, and even foreign ambassadors to the U.S.

It is estimated that over 300,000 children with at least one illegal alien parent are born in the U.S. each year.

A Powerful Incentive

Birthright citizenship is a powerful economic incentive for illegal immigration, as the U.S.-born child of an illegal immigrant automatically qualifies for a large panoply of welfare and other benefits:

“U.S.-born children of illegal aliens are entitled to American public schools, health care, and more, even though illegal-alien households rarely pay taxes.” (Ian Tuttle, nationalreview.com)

Upon reaching 18, the U.S.-born “anchor babies” of illegal immigrants also can sponsor the admission of their immediate family members to the U.S.

The prospect of giving birth to an instant American citizen also has given rise to a lucrative “birth tourism” industry, which offers wealthy foreign women package deal “vacations” to the U.S. – timed to ensure that their babies will be delivered in a U.S. hospital. (To its credit, the Obama administration attempted to shut down the birth tourism scam in 2015.)

Not Settled Law

While popular belief and current practice may hold that birthright citizenship is settled law, the application of the 14th Amendment’s citizenship clause to the children of noncitizens* continues to be debated by politicians and legal scholars. As the problem of illegal immigration took center stage during the 2016 presidential campaign, Donald Trump succinctly summarized this debate:

“I don’t think they [children of illegal aliens] have American citizenship and if you speak to some very, very good lawyers — and I know some will disagree — but many of them agree with me and you’re going to find they do not have American citizenship.”

The contention that birthright citizenship is not settled law is also supported by the fact that bills to end it have been repeatedly introduced in the U.S. Congress.

*In 1898, the Supreme Court ruled that the U.S.-born children of legal permanent residents are entitled to citizenship

“subject to the jurisdiction thereof”

The 14th Amendment (passed in 1868, during the reconstruction period) had nothing to do with immigration. The purpose of its citizenship clause (Section 1) was to ensure that the newly-freed slaves could not be denied the full rights and privileges of American citizenship.

The question of birthright citizenship for the children of foreign nationals (including foreign ambassadors) was raised during the congressional debate over the proposed amendment. During this debate, Senator Jacob M. Howard (a principal drafter of the amendment) stated that the second half of the citizenship clause (“subject to the jurisdiction thereof”) would exclude “…persons born in the United States who are foreigners or aliens.”

What does “jurisdiction” mean?

The interpretation of “subject to the jurisdiction thereof” lies at the heart of the ongoing debate over birthright citizenship. While it is beyond the scope of this essay (and the writer’s legal background) to fully explore this debate, it can be summarized by a single question:

Is a child born (on U.S. soil) to an alien who is not a legal permanent resident subject to the jurisdiction of the United States?

Not subject to U.S. jurisdiction: The opponents of birthright citizenship cite the legislative history of the 14th Amendment and the meaning of U.S. jurisdiction as it was understood at the time that the amendment was ratified:

“Many today assume the second half of the citizenship clause (“subject to the jurisdiction thereof”) merely refers to the day-to-day laws to which we are all subject. But the original understanding referred to political allegiance [emphasis added]. Being subject to U.S. jurisdiction meant, as then-Chairman of the Senate Judiciary Committee Lyman Trumbull stated, “not owing allegiance to anybody else [but] subject to the complete jurisdiction of the United States.” (Matthew Spalding, usnews.com) **

If (as the opponents of birthright citizenship argue) the granting of birthright citizenship is based on a misinterpretation of the 14th Amendment’s citizenship clause, correcting this misinterpretation would not require a constitutional amendment. This correction could be made by a clarifying act of Congress. (See, for example, the proposed Birthright Citizenship Act of 2015 — H.R. 140.)

**The political allegiance argument is bolstered by the fact that American Indians did not become U.S. citizens until passage of the Indian Citizenship Act of 1924. This is because (at the time of the 14th Amendment’s passage) American Indians were considered to be subject to the jurisdiction of their tribal nations, not the U.S.

Subject to U.S. jurisdiction: Besides having custom and current practice on their side, the proponents of birthright citizenship argue that the 14th Amendment’s “guarantee” of birthright citizenship is so clear and unequivocal that eliminating it would require a constitutional amendment:

“The proposed legislation [to eliminate birthright citizenship] directly contradicts the 14th Amendment guarantee that all people born in the U.S. and under its jurisdiction are citizens of the U.S. and the state in which they reside and subject to equal protection under the law. If enacted, the bills are unlikely to survive legal scrutiny since the Constitution can only be changed by amendment, not by state or federal statute.” (aclu.org)

According to many commentators (including this writer), the above argument is fallacious and inherently contradictory:

“Illegal aliens and their children, by definition, are not subject to the jurisdiction of the U.S. That’s why they can be deported. Their children are no more subject to the jurisdiction of the U.S. than their parents are, and as little entitled to citizenship.” (Bryan Fischer, barbwire.com)

It’s time to settle the debate

Despite the fact that the drafters of the 14th Amendment’s citizenship clause took pains to emphasize that it did not confer citizenship on the children of “foreigners or aliens,” its ambiguous language has fueled a continuing debate over birthright citizenship.

It’s time to settle this controversy, particularly since the country may be finally coming to terms with its massive illegal immigration problem – a problem that is endlessly compounded by the fact that hundreds of thousands of the newborn children of illegal aliens become U.S. citizens each year.

It is significant that President Trump raised the issue of birthright citizenship during the 2016 campaign. His presidency presents the country with the unique opportunity to finally resolve this issue. He should begin this process by calling on Congress and the public to engage in a long overdue national debate on the constitutionality of birthright citizenship.

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The opinions expressed in this commentary are solely those of the author and are not not necessarily either shared or endorsed by iPatriot.com.

pleikuman

A retired management consultant who lives in the Minneapolis-St Paul area.

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