Citizenship-By-Birth Faces Challenges

If you're born in the U.S.A., you're an American citizen. Some lawmakers, however, plan to challenge that basic assumption.

In what might be the next great flash point in the nation's ongoing debate about immigration policy, legislation has been introduced in Congress and a pair of states to deny birth certificates to babies born of illegal-immigrant parents.

"Currently, if you have a child born to two alien parents, that person is believed to be a U.S. citizen," says Randy Terrill, a Republican state representative in Oklahoma who is working on an anti-birthright bill. "When taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the U.S."

Bills to challenge the fact that citizenship is granted as a birthright in this country have been perennial nonstarters in Congress, although the current legislation has 91 co-sponsors. As with other issues surrounding immigration, however, some state legislatures still might act, if only in hopes of bringing this issue before the Supreme Court.

"That was the primary purpose of the bill, for someone to sue us in federal court, and let's resolve this issue once and for all," says Texas state Rep. Leo Berman, a Republican who has introduced a bill to deny birth certificates to the newborn children of illegal immigrants. "I believe we are giving away 350,000 citizens a year to children born to illegal aliens."

Berman faces an uphill battle. For more than a century, courts have held that citizenship is granted to anyone born within the territory of the United States.

The 14th Amendment, which was ratified in the wake of the Civil War, overturned the Dred Scott decision, clarifying that the children of former slaves were citizens and entitled to constitutional protections: "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."

Since then, courts have made it clear that this applies to the children of American Indians, visiting diplomats and Chinese guest workers, among other groups. The principle of birthright citizenship has never been successfully challenged, according to immigration lawyers.

But the federal courts have never specifically addressed the question of whether children born to those in the country illegally should be entitled to citizenship, says Michael M. Hethmon, general counsel of the Immigration Reform Law Institute, which favors tighter restrictions on immigration and has advised the state legislators on their efforts.

Berman says the 14th Amendment was meant to clarify the status of freedmen and "does not apply to foreigners. The 14th Amendment, which is being used to provide citizenship, is the last thing that should be used."

The authors of the 14th Amendment, he argues, intended to make citizenship contingent on allegiance to the country. The congressional debate at the time makes it clear that this did not apply to foreigners, Berman says.

"There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal," Lino A. Graglia, a professor at the University of Texas law school, wrote in a law review article last year. "This would clearly settle the question of birthright citizenship for children of illegal aliens."

Opponents to granting birthright citizenship often grab hold of the phrase "subject to the jurisdiction thereof," saying that those in the country illegally are by their nature not subject to the jurisdiction in question, whether it's the U.S. or a particular state.

Many other lawyers say that's a false reading. "Of course they're under our jurisdiction," says Michele Waslin, senior policy analyst with the American Immigration Council, which works to protect the legal rights of immigrants. "If they commit a crime, they're subject to the jurisdiction of the courts."

Not every nation grants citizenship as a birthright. Sometimes it is an inheritance from one's parents, based more on blood than land.

But challenging the traditional expectation that anyone born within the physical territory of the U.S. is automatically a citizen represents a "major change in a bedrock principle that has lasted for decades," says Karen Tumlin, managing attorney for the National Immigration Law Center, a public interest legal group based in Los Angeles.

"It's a core American belief that those who are born here get integrated into our society, no matter where your parents are from," she says. "This would be an erosion of the core principles about who belongs in this country."

That's precisely the argument opponents of birthright citizenship want to start. If a law denying birth certificates to the children of illegal immigrants passes — and it's written in such a way that it gets argued in federal court, rather than being dismissed out of hand — it will have more of a "galvanizing effect" than the recent passage of a strict anti-immigration law in Arizona, says Hethmon, general counsel of the Immigration Reform Law Institute.

"All the interested parties, which in the case of birthright citizenship includes everyone in the country, would have to respond to it, either supporting it or opposing it," Hethmon says. "Who is an American? If that question can't be answered, it's hard to conceive of a greater constitutional crisis for a democratic republic."

The reality is that the ‘wise latina’ and the other liberals on the SCOTUS would almost certainly rule that ANYONE born here is a citizen. It would be a fight to prevent them from ruling that ANYONE, ANYWHERE is a US citizen, regardless of where they were born and where they live - all in the interest of fairness.

I’m absolutely certain that citizenship by birth regardless of circumstance is NOT part of the Constitution. Getting the SCOTUS to rule IAW my views is probably impossible, given the make-up of the court.

Until we win at the ballot box, repeatedly, for 20+ years, the courts will give conservatives very few victories on anything.

What are the immutable laws under which our country operates?

The supreme court of the United States has jurisdiction exclusively, in all such suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can exercise consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice consul shall be a party. St. George Tucker1803

Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people. Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority; as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature's God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all.
Of the Law of Nations, James Wilson, Lectures on Law

There has been a difference of opinion among writers, concerning the foundations of this law. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that the law of nations was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligation and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force, and dignity, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel, the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others, the internal law of nations, because it is obligatory upon them in point of conscience.
James Kent, Commentaries

-----

If you should care to read it: Law of Nations

Are the parents in the jurisdiction of the US at the time of birth? Well, usually the father is still in Mexico, and the mother is here illegally - so by definition, she is NOT in submission to our laws. Therefor, the child is being born contrary to the jurisdiction of the US.

The courts will not fix it. It would require a Constitutional amendment - one that could not pass in the current state of politics. Even then, the ‘wise latina’ and her friends would do whatever was required to interpret it away.

But no one reading WKA would think that the 14th amendment would be twisted to make the child of illegals citizens. Not IMHO.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.