DENNIS PATRICK: BIRTHRIGHT CITIZENSHIP
Should kids born to any foreigner in the US, in particular “birthright tourists” and illegal aliens, be granted US citizenship? Pros and cons flourish on this hot topic.
The US Supreme Court will rule on this issue sooner than later. President Trump issued a 700-word executive order on January 20 (first day in office) restricting birthright citizenship.
On January 21, the Associated Press reported, “Attorneys general from 22 states sued Tuesday to block President Donald Trump’s move to end a century-old immigration practice known as birthright citizenship guaranteeing that U.S.-born children are citizens regardless of their parents’ status… But whether it succeeds is far from certain amid what is likely to be a lengthy legal battle over the president’s immigration policies and a constitutional right to citizenship. The Democratic attorneys general and immigrant rights advocates say the question of birthright citizenship is settled law and that while presidents have broad authority, they are not kings.” By February 21, four US District Judges had blocked Trump’s executive order. Trump’s administration is appealing.
So, what is the issue and why does it matter?
The premise for any discussion rests on the interpretation of the following clause from the US Constitution’s 14th Amendment: “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.”
Naturalization, of course, is the idea that a foreigner, through a legal process, can become a citizen equal to other Americans. All individuals have a natural right to emigrate from their homeland, but they may only immigrate (no play on words) to the US with the consent of the American people as expressed through US law.
The broadest (liberal) rendering of the 14th Amendment’s clause appears to be a constitutional misreading of that clause. Not only does this erroneous interpretation grant citizenship to the children of illegal immigrants, but it also guarantees (falsely) full due-process rights to these same kids who grow up to be adults. Thus, as an example, Taliban fighter Yasir Hamdi, born in the United States of visiting Saudi parents, was captured 20 years later in Afghanistan trying to kill US soldiers. He was treated as a US citizen and given due process rather than being treated as an enemy combatant and classified as a prisoner of war (POW).
Andrea Widburg posted her reflections on birthright citizenship for the American Thinker. Consider the following. First, English common law undergirds American law. One principle holds that an invader’s children are not citizens. To the extent that the illegal aliens in America have not entered by state invitation or by legal recourse signifies they are foreign invaders. Consequently, they must not complete the process of conquest with their children automatically becoming citizens and affecting our elections or accruing our benefits.
Second, Illegal aliens are not “residents.” Residency does not mean inhabiting a place. “Residence” has a specific LEGAL meaning based upon the LEGAL recognition of an occupant of American soil such as a green card holder, an acknowledged refugee, or someone with temporary protected status (asylum seekers).
Third, the 14th Amendment does not simply say that to be born in America is sufficient. Rather, the person must also be subject to American jurisdiction. Jurisdiction means something more than being obligated to obey American laws while on American soil. Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States which would extend citizenship to the children of tourists and diplomats as well as to illegal aliens. But that is not what that qualifying phrase means.
The understanding of “jurisdiction” may be subtle, but the distinction is vital for clarifying citizenship. Territorial jurisdiction requires obedience to the laws of a sovereign state. Political jurisdiction requires allegiance to the United States and the Constitution and no other. That is why naturalized citizens must take tests and swear allegiance to the United States during their formal naturalization process.
Why does this matter? Because one of the 14th Amendment’s drafters, Sen. Jacob Howard, whose intended purpose was to give citizenship to blacks whose parents had been forcibly imported to the United States and who had no other national fealty, stated explicitly that the amendment would not apply to “persons born in the United States who are foreigners, aliens...”
Point of interest: American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents were.
In the end, what the drafters of the 14th Amendment intended is what matters. Ancient rules of statutory construction with roots in English common law mandate that, if a statute’s words are ambiguous, you must look to the drafters’ intention.
The 14th Amendment need not be repealed, nor must the Constitution be amended. However, the Supreme Court must revisit and clarify the 14th Amendment regarding birthright citizenship. It would then be for Congress to codify the Supreme Court’s decision into law – if they are up to it.
Dennis M. Patrick can be contacted at (JavaScript must be enabled to view this email address).
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