It really comes down to this following question. If you are 8 1/2 months pregnant, run across the border and give birth in a U.S. hospital, is the baby a U.S. citizen?
Well, the 14th Amendment says this.
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 State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Some people say that, if any woman is 8 1/2 months pregnant and has a baby in the U.S., that baby is automatically a U.S. citizen. Some people say that this is partially true. The key part of Section 1 is this, “and subject to the jurisdiction thereof,”.
This is what history tells us about it. The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.
This is what the original author (Sen. Jacob Howard of Michigan) co-author of the 14th Amendment (1866) expressly said what it means. “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers.”
In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.
For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)
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.)
Brennan’s authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, THE Clement L. Bouve — the one you’ve heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge — just some guy who wrote a book.
So on one hand we have the history, the objective, the author’s intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants.
On the other hand, we have a random outburst by some guy named Clement — who, I’m guessing, was too cheap to hire an American housekeeper.
I am not sure that this quote supports the idea that the children of illegals that are born here are not citizens. Back when I went to school in the 60's and 70's, they taught us how to diagram a sentence. This sentence appears to limit the restriction against birthright citizenship to the families of ambassadors or foreign ministers. The sentence construction makes it appear that the word "aliens" is a clarification of the preceding term "foreigners", not a separate category. As such, the term could be deleted without changing the meaning of the sentence.
So the best reading of that sentence would be, "“This will not, of course, include persons born in the United States who are foreigners who belong to families of ambassadors or foreign ministers.” So it appears that the ONLY foreigners being excluded from birthright citizenship by this statement were the families of diplomats.
Note that I am not in favor of birthright citizenship - just pointing out that this quote does not support the argument against it.
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!
That worked out great too.