Deconstructing "Birthright Citizenry"

self/vanity | August 28, 2015 | Jean F. Drew

[betty boop]

Thanks in very large part to The Donald, the illegal immigration issue has come raging to the fore in the consciousness of a great many American citizens (and others) in recent times. People are not only thinking about the issue, but they have started talking about it, oftentimes with great passion. And this is so regardless of which side of the dispute the contenders align with.

It seems there are two basic, contending schools of thought, both premised in the Fourteenth Amendment, which says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.

School I cherry picks this language to give a certain result: That all persons born in the United States are citizens of the United States. This is the jus soli doctrine boiled down to its essence: That citizenship is a matter of geography, and of nothing else. If you are born on U.S. soil, you are automatically a citizen of the United States. Your parents’ heritage or status as citizens of a foreign country, who are in the U.S. illegally — i.e., operating entirely outside of our visa, immigration and naturalization laws —are completely irrelevant considerations. And thus we obtain automatic “birthright citizenry.”

School II points out that this reading of the Fourteenth gives short shrift to the clause, “and subject to the jurisdiction thereof,” and obviates the matter of State citizenship altogether (and thus the entire idea of any established permanent residency within the bounds of the nation). The School II proponents gravitate to the jus sanguinis doctrine: A child born no matter where is regarded, naturally and in common law (and common sense), as inheriting his citizenry from his parents; from the moment of his birth.

It cannot be doubted that Article I, Section 8 of the U.S. Constitution vests plenary power in Congress to “establish an uniform Rule of Naturalization.” Clarifying “birthright citizenship,” thus, does not require a repeal of the Fourteenth Amendment, as some commentators insist; it just requires Congress to act. Nor does the Constitution place this power in the hands of the Supreme Court.

From an excellent “backgrounder” published by the Center for Immigration Studies (August 2010) — “Birthright Citizenship in the United States: A Global Comparison,” by Jon Feere — we have seven main scholarly findings regarding “birthright citizenship,” as follows:

• Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens.

• Of advanced economies, Canada and the United States are the only countries that grant automatic citizenship to children born to illegal aliens.

• No European country grants automatic citizenship to children of illegal aliens.

• The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades.

• 14th Amendment history seems to indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States.

• The U.S. Supreme Court has held that the U.S.-born children of permanent resident aliens are covered by the Citizenship Clause [see the Wong decision; notably, Wong was the U.S.-born child of legal, permanently-resident aliens], but the Court has never decided whether the same rule applies to the children of aliens whose presence in the United States is temporary or illegal. [That would likely be because the Court understands that it does not have the constitutional power or authority to do this. To recognize the plenary power of Congress in this matter is to recognize that the issue must be decided through the political, not the judicial branches of government.]

• Some eminent scholars and jurists have concluded that it is within the power of Congress to define the scope of the Citizenship Clause through legislation and that birthright citizenship for the children of temporary visitors and illegal aliens could likely be abolished by statute without amending the Constitution.

The global trend over the past several decades has shown many countries that formerly defined citizenship according to the “right of the soil” (jus soli) principle have abandoned this practice. Freer writes,

In recent years, the international trend has been to end universal birthright citizenship. Countries that have ended universal birthright citizenship include the United Kingdom, which ended the practice in 1983, Australia (1986), India (1987), Malta (1989), Ireland, which ended the practice through a national referendum in 2004, New Zealand (2006), and the Dominican Republic, which ended the practice in January 2010. The reasons countries have ended automatic birthright citizenship are diverse, but have resulted from concerns not all that different from the concerns of many in the United States. Increased illegal immigration is the main motivating factor in most countries. Birth tourism was one of the reasons Ireland ended automatic birthright citizenship in 2004. If the United States were to stop granting automatic citizenship to children of illegal immigrants, it would be following an international trend.

Oh, that unlovely child of jus solis doctrine, “birth tourism!” We have that over here, in the U.S., in spades! It defies logic; it defies reason; it defies common sense.

Though the major impact of “birthright citizenry” is caused by invasions over our southern border, and mainly by Mexicans (according to the statistics they account for 60 percent of the illegal immigrant population in the United States), it cannot fairly be said that Mexican nationals can be held mainly accountable for the phenomenon of “birth tourism.” As it turns out, Chinese and Turk “anchor babies” have exploited this particular form of entrepreneurial activity more than other “anchor baby” groups.

“Birth tourism” takes the form of providing wonderful tourist packages marketed to foreign nationals who wish to birth their babies on U.S. soil, so to make them instant citizens, while receiving splendid amenities during their stay in the U.S.: Good hotels, medical care, shopping, touring the local landmarks, etc., etc. It’s a “package deal!” [At rates in the multi-thousands of dollars per trip for those who can pay.]

So, say a Chinese expectant mother, who likely was educated in the United States (and thus had a legitimate visa to be here at one time), along with her husband likewise situated, who both had to pay small fortunes for their tuition, might realize that U.S. tuition rates at first-rate American universities would be far cheaper, were their child a U.S. citizen. So, make your kid a U.S. citizen! The Fourteenth Amendment lets you do it! So enjoy your stay, drop the kid, and go back to China. There is rarely any intention of becoming a permanent resident of the United States in any of this, let alone a citizen.

But the most egregious example of abuse of the prevailing construction of the Fourteenth Amendment goes to Turkey. A family of Turkish citizenry, illegally present in the United States to this day, as founded on a single “anchor baby,” managed to establish in the U.S. a thriving hotel chain that caters to the U.S. “birthright citizenry” interests of Turkish nationals. And to add insult to injury, one learns that certain hospitals on the southern U.S border likewise engage in this trade, offering “package deals,” mainly marketed to Mexican nationals.

But I am encouraged to learn that, recently, certain hospitals on the southern border have refused to issue birth certificates to the U.S.-born children of illegal immigrants. No birth certificate, no proof of American birth. Kudos to them. [See ya’ll in court!!!]

This nonsense has to stop. And Congress alone has been invested with the constitutional duty to do it. It NEEDS to define the meaning of the “under the jurisdiction of” clause of the Fourteenth Amendment.

The legislative history of the Fourteenth Amendment, and of the prior Civil Rights Act of 1866, point clearly to the matter of undivided allegiance to one’s country as the key determinative factor in defining U.S. citizenship. Only those people are the people fully subject to the jurisdiction of the United States.

As Thomas Jefferson defined it, “Aliens are the subjects of a foreign power.” They are those who have not given their allegiance to the United States, because they are under allegiance to another nation.

With that thought in view, consider these chilling lines, from Jon Freer:

Are illegal aliens subject to the authority of the United States? Not in the way contemplated by authors of the 14th Amendment. … [T]he authors of the 14th Amendment explained that being subject to the jurisdiction of the United States means not owing allegiance to anybody else.

Without asking immigrants themselves, we cannot know where their allegiances lie, but in the case of Mexican immigrants, who constitute nearly 60 percent of the illegal alien population in the United States, we do know what their government thinks. It appears these individuals owe at least partial, if not complete allegiance to the government of Mexico.

For example, in its recent amicus brief to the U.S. District Court overseeing the injunction hearing on Arizona’s anti-illegal immigration bill S.B. 1070, the government of Mexico refers to Mexican illegal aliens as “its people” and “its citizens.” This is not a new perspective.

Former Mexican President Vicente Fox appointed one Juan Hernandez to head a governmental agency called the Institute for Mexicans Abroad. According to Mr. Hernandez’s own website, the agency’s principal objective is to “serve and dignify the 24 million whom President Fox has called heroes — the countrymen who live in foreign lands.” Mr. Hernandez explains: “We are betting on that the Mexican-American population in the United States…will think ‘Mexico first’ … But now I want the third generation, the seventh generation, I want them all to think ‘Mexico first.’”

Can you think of a better enabling principle for the Mexican Reconquista of the United States? Mexico has never recovered from the defeat of Santa Ana at San Jacinto, meted out by the hands of feisty Texans. Mexico receives billions of dollars a year in payments from their out-of-the-country population, which is probably a main support of subsistence and lifestyle for a great many of its citizen/nationals living within its geographic borders.

If Congress will not do its duty to define U.S. immigration/naturalization law, then likely our policy in such matters will be left to the determination of foreign governments.

No wonder The Donald has a “beef” with the Mexican government!

It’s time — past time — for Congress to do its constitutional duty to clarify such critical, even existential, matters.

The evident fact, however, is Congress is loathe to do so.

What a clown college they have got going on there! On the one side, the clowns demand endless, indiscriminate immigration, evidently thinking they can register millions of new (ignorant, mainly low-skilled, unculturated, non-English-speaking) Democrat voters.

On the other hand, you have the Chamber of Commerce, Business Roundtable, National Association of Manufacturers types who fund the GOP, who only want an unlimited supply of cheap labor. Not that they care at all about how this undermines blue-collar and middle-class employment in this country, and how it suppresses U.S. wage rates and standards of living.

Then they have the chutzpah to demand that the very people whose policies they are disadvantaging must pay all the costs associated with these “newcomers,” as federal and state taxpayers.

Am I alone in thinking that this is a horrifically corrupt, deranged system of governance that has completely departed from constitutional requirements — to which each legislator (and judge) has sworn an Oath of Office to uphold and defend?

Time to get rid of such folks, time to remove them from public office.

It’s time to bring in new national leadership, who understand and love the United States of America, “warts and all.”

We aren’t a “perfect union.” But we have ever strived towards that end.

Let’s keep on doing that. Let’s make America great again.

JMHO, FWIW.

[betty boop]

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)

But Brennan's remarks were pure "dicta," as you say "footnotes" or free-lance personal opinions that have no precendential binding on future courts' decisions.

His spew just muddied up the waters of constitutional jurisprudence on this issue.

You always have a Supreme Court "liberal" (really, left Progressive) jurist to blame for such a state of affairs. I feel pretty sure that the "wise Latina" on the Court would sympathize with Brennan's "jurisprudential view." And probably draw an unprincipled idiot like Justice Kennedy into supporting her.

Your point about the legislative history of the Fourteenth Amendment is well taken and supported, my friend.

The Fourteenth was passed, and ratified, because certain Southern States refused to grant state citizenship to newly-enfranchised slaves. At the time, to be bereft of State citizenship meant that one could not be recognized as a United States citizen. THAT was the problem the Fourteenth Amendment was grappling with; it had nothing to do with the citizen status of children born to illegal immigrants.

Thank you ever so much for your outstanding, insightful, and historically-well-grounded essay/post! Well done!

[CA Conservative]

all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens.

Now that quote is a much stronger argument for the proposition that the children of illegals should not get automatic birth-right citizenship. Personally, I think Congress could resolve the question with a simple statute, stating that foreign citizens are not considered "subject to the jurisdiction of the United States" for the purposes of the 14th amendment unless they are legal permanent residents. And then include a clause in the statute denying the judicial branch jurisdiction over that statute.

[Red Steel]

Bump.

[Hostage]

You think people are not aware of those facts? If yes, what’s the point in stepping on the sentiment? If no, then you should be aware that longtime FR members are well-aware of the process.

Of course, it goes without question that Donald Trump will propose legislation on Day One of his term and request a bill be sent to him for his signature that imposes a tax on outgoing remittances.

I am confidant Donald Trump will also on Day One propose a host of other tariffs and taxes that will be imposed on American companies unless they repatriate their overseas operations and capital.

[DiogenesLamp]

Now that quote is a much stronger argument for the proposition that the children of illegals should not get automatic birth-right citizenship. Personally, I think Congress could resolve the question with a simple statute, stating that foreign citizens are not considered "subject to the jurisdiction of the United States" for the purposes of the 14th amendment unless they are legal permanent residents. And then include a clause in the statute denying the judicial branch jurisdiction over that statute.

A few days ago I conceived of what I regarded as a clever plan.

The 14th amendment is understood to not grant citizenship to Indians born in the United States. The Supreme Court took up this issue with Elk v Willkins and ruled that Indians are not citizens because they are not subject to the Jurisdiction of the United States.

This state of affairs continued from 1868 to 1924 when congress passed the "Indian Citizenship Act of 1924." Thereafter, Indians born in the United States were US Citizens.

My clever idea is to repeal the Indian Citizenship act of 1924. This act no longer serves any purpose because all Indians Born after 1924 are US Citizens, and therefore all their children will be US Citizens too. The Only exception would be Indians born before 1924 who are having children, and I expect that to be a very small number. :)

This would simply reset the law to what it was prior to 1924. It would clearly prevent citizenship to any Indians born here to non-US Citizen parents.

This is the clever part. Most of the people sneaking across the border are Central and South American Indians.

It would make the law clear that they cannot be granted citizenship, and after people have time to think about it, they will realize the same standard must apply to any foreign entrant that is not legally domiciled in this country.

It will be a slap across the face that wakes everyone up. It will make clear what the law originally was, and in such a manner that the courts would be powerless to stop it.

Indians were clearly denied citizenship after the 14th amendment was passed, and the 14th amendment clearly allows this.

[CA Conservative]

You think people are not aware of those facts?

Based on a lot of the posts I have seen, I think a lot of people are not aware of those facts, or they are choosing to ignore them in the case of Trump. I keep seeing people making claims about things that Trump will do as president, without any acknowledgment that he CANNOT do many of those things - he can propose them, he can push for them, but unless and until he can get Congress to go along, he cannot do them. And most of these same people seem gleeful with the idea that Trump will give the middle finger to the Beltway cabal, yet somehow think he will be able to get those same people to work with him...

[frog in a pot]

Note that I am not in favor of birthright citizenship...
Fair enough.

...just pointing out that this quote does not support the argument against it.

I will disagree. Such a "best reading" produces superfluous, unnecessary language. IMO, it is clear from a fair reading that the language following "who are" refers to three separate and distinct classes of non-citizens.

But otherwise, I have enjoyed reading your various posts! Have a nice weekend (may I recommend the waters off of Santa Barbara?)

[CpnHook]

Here’s another one for you two. Jump right in. Let the rest of Free Republic know what you think.

You made the same suggestion (that I jump into one of the many 14th Amendment threads) yesterday. I did. And I picked the thread that started yesterday.

I'm not seeing anything new in this thread that hasn't already been covered in the other one.

[CA Conservative]

I will disagree. Such a "best reading" produces superfluous, unnecessary language. IMO, it is clear from a fair reading that the language following "who are" refers to three separate and distinct classes of non-citizens.

I would agree if the sentence said "foreigners, aliens, and the families of ambassadors and foreign ministers." Then that sentence would unambiguously identify three distinct groups.

Thanks for being willing to disagree in a civil manner. That is becoming an increasingly scarce trait around here, I'm afraid... :-)

[Rome2000]

A qualifying clause modifies, or explains, the main clause. For example,

The president was re-elected, although with a reduced majority.

The clause, ‘although with a reduced majority’ explains the main clause, ‘the president was re-elected’. Qualifying clauses are generally placed as close as possible to the words which they modify. Here’s another example:

He died in the village where he was born. (Here the qualifying clause ‘where he was born’ modifies the noun “village”.)

Qualifying clauses are a necessary part of writing to convey meaning and clarity.

https://stuarthoughton.wordpress.com/2013/04/30/tips-to-better-writing-2-avoid-qualifying-clauses-at-the-beginning-of-sentences/

[Rome2000]

The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves

That worked out great too.

[Rome2000]

but unless and until he can get Congress to go along, he cannot do them.

I think Obama has proved that a President can do whatever he wants as there is no mechanism to stop him save impeachment.

And when you control the Army and the DOJ, you can arrest members of Congress that might be plotting to impeach you.

All bets are off.

Do you seriously think that Trump with the support of the people is going to let the Washingtonians stop him from doing whats necessary?

He's going to DC to destroy the politicians, not act like one of them.

[SharpRightTurn]

Nice job, betty boop.

[Hostage]

Well gee then aren’t you the smart one?

Of course there are a lot of people on FR that aren’t aware.

But it’s not WHAT we inform them, it’ HOW we inform them.

Take yourself down a few notches and practice your delivery, or don’t bother me anymore.

[philman_36]

...there is a U.S.C. Title Code on the matter, as well.

Do you mean this...
8 USC CHAPTER 12, SUBCHAPTER III: NATIONALITY AND NATURALIZATION, Part I—Nationality at Birth and Collective Naturalization
§1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

[Nero Germanicus]

The Indian Citizenship Act of 1924 granted citizenship to about 125,000 of 300,000 indigenous people in the United States. To put these numbers in perspective, the U.S. population at that time was less than 125 million. The indigenous people who were not included in citizenship numbers had ALREADY BECOME CITIZENS BY OTHER MEANS; entering the armed forces, giving up tribal affiliations, and assimilating into mainstream American life were the primary ways this was done.

Citizenship was granted in a piecemeal fashion before the Act, which was the first more inclusive method of granting Native American citizenship. The Act did not include citizens born before the effective date of the 1924 act, or outside of the United States as an indigenous person, however, and it was not until the Nationality Act of 1940 that all persons born on U.S. soil were citizens.

[CA Conservative]

Do you seriously think that Trump with the support of the people is going to let the Washingtonians stop him from doing whats necessary?

I think it is this attitude, seemingly shared by many Trump supporters, that scares me the most about a Trump candidacy. The attitude is, "Obama bypassed Congress, ignored the Constitution, enforced the laws he liked and ignored the ones he didn't; now see how you like it when Trump does the same! Unless you can get 67 votes to impeach, there's nothing you can do!"

The problem is, I actually want a president who knows and understands the Constitution and will follow it and the rule of law. I don't want another lawless president, even if this one might agree with me on some issues.

If we get another president who ignores the Constitution and rule of law like Obama, regardless of which party he/she represents, that will be the end of our Constitutional democracy. No president from that day forward will even worry about the Constitution, as the precedent will have been set and firmly established.

[CA Conservative]

Well gee then aren’t you the smart one?

Why. yes I am. Thanks for noticing!

Of course there are a lot of people on FR that aren’t aware.

Thank you for acknowledging this important fact.

But it’s not WHAT we inform them, it’ HOW we inform them.

I must disagree. WHAT we inform them is at least as important as HOW we inform them, if not more so. If the WHAT is wrong, then the HOW really doesn't matter.

Take yourself down a few notches and practice your delivery, or don’t bother me anymore.

I'm sorry if you didn't like my delivery, but that does not negate the truth of my statement. And since it was information of which people seem to be unaware or ignoring, I think it was important to bring it up. I was not rude, insulting or offensive - I merely raised a valid point that should be kept in mind in these discussions. Otherwise, Trump supporters may have unrealistic expectations of what he can accomplish without the cooperation of Congress...

[philman_36]

...our Constitutional democracy.

I'm from America. Texas to be precise.

America is a Constitutional Republic
with democratic elements.

So where are you from?

[philman_36]

Fundamental Transformation: Obama Again Calls the United States a Constitutional Democracy