Skip to comments.Does the Constitution really say that children of illegal immigrants are automatic citizens?
Posted on 01/27/2011 10:51:23 AM PST by SeekAndFind
While 2010s immigration debate centered on the controversial Arizona law, 2011s promises to be focused on a different and even more explosive topic: birthright citizenship.
Kris Kobach, the recently elected Kansas secretary of state, is a lawyer and professor of law who specializes in immigration issues. The architect of Arizonas SB-1070, he is the legal mind behind two new proposals to challenge the automatic granting of citizenship to any child born in the United States, regardless of the legal status of his parents. The first proposal is state-level legislation that would not affect the federal citizenship of an illegal immigrants child, but would deny him citizenship of that state. The second is a state compact, which has to be adopted by at least two states and approved by Congress to be enacted, that would deny the children of illegal immigrants citizenship at both the state and the federal level.
Theyre two routes to the same destination, says Kobach. They attempt to restore the original meaning of the Fourteenth Amendment.
Not everyone on the right is lauding these initiatives, although there are different grounds for opposition. Mark Krikorian, executive director of the Center for Immigration Studies, is concerned that redefining birthright citizenship before securing the border could lead to a large, multi-generational population of illegal aliens. Linda Chavez, chairman of the Center for Equal Opportunity, calls the efforts a direct assault on the meaning of what it means to be an American. Alfonso Aguilar, executive director of the Latino Partnership for Conservative Values, says the backers of the legislation are embracing a constitutional-activist position.
On the left, there is no interest in and some horror at the prospect. In August, Homeland Security Secretary Janet Napolitano called efforts to change the Fourteenth Amendment just wrong, a position that reflected President Obamas, according to White House press secretary Robert Gibbs. In Tuesdays State of the Union address, Obama urged lawmakers to take on, once and for all, the issue of illegal immigration. But the solutions he offered secure borders, law enforcement, and some version of the DREAM Act indicate that he continues to think that changing birthright citizenship is an inappropriate solution.
Joining Kobach in the effort is Pennsylvania state representative Daryl Metcalfe, who founded State Legislators for Legal Immigration. Metcalfe reports that lawmakers from 32 states have expressed interest in at least one of the initiatives, although he concedes he has no idea how many states will ultimately pass the legislation. Kobach estimates that ten or more states will pass at least one of the initiatives.
If even one state passes the law that denies state citizenship to the children of illegal immigrants, there is likely to be a lawsuit. Hopefully, it would eventually present the issue to the Supreme Court, says Kobach, so that we would have an authoritative statement from the court on whether subject to the jurisdiction thereof whether those words have any meaning or not.
To Kobach, it is nonsensical to understand subject to the jurisdiction thereof as meaning anything other than that at least one of the parents must be a citizen of, or at least legally residing in, the United States. Talking about United States v. Wong Kim Ark, the Supreme Court decision in 1898 that many view as having settled that all babies born in the U.S., regardless of parenthood, are citizens, Kobach points out that Wong Kim Ark was the son of Chinese immigrants legally living in this country at the time of his birth.
There are two very powerful reasons why I think the majority of the Supreme Court would agree with us. And one is that every ounce of evidence of original intent says that our understanding is correct, says Kobach, remarking that the framers of the Fourteenth Amendment intended that birthright citizenship be given only to children whose parents had no allegiance to a different country.
The other factor, he adds, is that there is a long-standing rule of interpreting the Constitution that says there are no surplus words in the Constitution. And the way the liberals want to read the Fourteenth Amendment, they treat subject to the jurisdiction thereof as if they are surplus words meaning nothing.
Chavez argues that the position that subject to the jurisdiction thereof excludes the children of illegal immigrants is clearly ahistorical and clearly conflicts with not just the historical debate, but consequent Supreme Court decisions. Chavez compares todays illegal immigrants to the gypsies present in this country when the Fourteenth Amendment was debated. Gypsies didnt pay taxes, yet their children were considered citizens by the legislators.
While the state-citizenship legislation is likely to punt the question of birthright citizenship to the courts, Kobach says the state compact tees up the issue for Congress. State compacts must be approved by a majority of congressional lawmakers, although presidential approval is not necessary.
The futures of the initiatives are uncertain, but supporters see tackling the issue as crucial. For Metcalfe, ending birthright citizenship for illegal immigrants children is as necessary as securing the border. The fact remains that we still have people within our borders who are here illegally, he says. We as a state have to deal with those individuals as far as jobs theyre taking away from our citizens, and the benefits theyre illegally tapping into.
Roy Beck, executive director of the immigration-restriction group NumbersUSA, also stresses the importance of changing birthright citizenship in the effort to halt or slow illegal immigration. It is an incentive, he says. Its a moderate incentive for people to come here illegally, and its a major incentive for illegal aliens not to go home.
Advocates also argue that those who view the issue as too controversial are ignoring the global perspective. Almost no advanced countries, with the exception of Canada, treat children born to non-citizen parents within their borders as automatic citizens.
Krikorian thinks that any push to change eligibility for birthright citizenship must be paired with pro-immigrant elements, such as increased English-language education and better bureaucratic processing for immigrants. I think its important for immigration skeptics to make clear that theyre not immigrant skeptics, he says.
Kobach brushes off concerns that the initiatives arent politically viable. There are a lot of politicians and political advisers who think they know what is politically advantageous to say and what is not, he acknowledges, but he points out that many supposedly knowledgeable political strategists advocated amnesty in 2004 and then backed off the proposal when it was clear the public didnt favor it.
But Aguilar is adamant that the initiatives will antagonize Latino voters. And that could have a long-term impact. Its pretty clear that if we dont win 30 to 40 percent of the Latino vote in the next election, he says, were not going to win back the White House.
Katrina Trinko is an NRO staff reporter.
HELL EFFIN NO
If all "subject to the jurisdiction thereof" meant was that the United States had issued them a visa, it's over.
If this issue goes to the Supreme Court you can be 100% sure Sotomayor, the Wise Latina, will answer YES to the above question.
AS usual, it will be a 5-4 decision ( assuming we have the same people in the SCOTUS ), with Kennedy giving the deciding vote ( depending on which side of the bed he wakws up in the morning ).
This stands in stark contrast to the situation where you had generations of slaves going without citizenship.
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.
Don't let this get in your way.
The issue will hinge on the original intent of the phrase -— subject to the jurisdiction thereof.
What did the amenders mean? Did “subject to jurisdiction” mean anything other than that at least one of the parents must be a citizen of, or at least legally residing in, the United States?
THAT is the question that must be answered.
Doesn’t say we can’t make it a punishable offence for a illegal to purposely have a baby here, or does it demand a state issue a birth certificate to said child.
Yeah, and liberating the concentration camps antagonized the Nazis. Good.
Is the ambassador from Ireland subject to the jurisdiction of the United States while in the United States?
His child, therefore, is not automatically a United States citizen when born here.
He is not “subject to the jurisdiction thereof”.
Someone who crosses the border illegally is “subject to the jurisdiction thereof”.
The Constitution is clear. We need to change the Constitution to correct this.
What about a baby born to a tourist?
“and subject to the jurisdiction thereof”
It means that the tag “illegal” or “legal” can be placed on something you do. This means that yes, illegal immigrants are subject to the jurisdiction of any country that can tag them such.
Sotomayor is simply not up to dealing with such dilemmas, and neither is that Kagan person.
The Constitution is fine.
It was the courts that changed the original intent of the Amendment.
A law is more than adequate to correct it.
Unfortunately, I tend to agree.
Those not subject to the jurisdiction thereof are I believe generally construed as being limited to foreign diplomats and their families, who are "not subject" to our jurisdiction because they have diplomatic immunity.
Another exception is foreign invaders occupying the country. Maybe we could fit illegals in under that grouping.
I doubt the framers of the amendment intended to establish birthright citizenship for illegal immigrants. But then there were no illegal immigrants at the time, for the simple reason there were no immigration restrictions and no laws on the subject. Anybody could enter the US. The first restrictions, rather minor ones, weren't passed for another decade or so.
Surely somewhere in the past the court has defined what 'subject to the jurisdiction' means?
The first proposal is state-level legislation that would not affect the federal citizenship of an illegal immigrants child, but would deny him citizenship of that state.
Apparently Kris wants to treat the part of the 14th Amendment that says "...are citizens of the United States and of the State wherein they reside" as surplus words as well. Children of illegals may or may not be citizens of the U.S., natural born or otherwise. That is a very real question that the courts need to answer. But if the children of illegals are found to be citizens of the U.S. then they are also citizens of the state they're living in and nothing a local legislature can do will change that.
Mr. Bush thought it was not a good bill.
“Yeah, and liberating the concentration camps antagonized the Nazis. Good.”
In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:
"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."
“The Constitution is fine.
It was the courts that changed the original intent of the Amendment.
A law is more than adequate to correct it.”
I thought it was Kennedy’s immigration act that started it. But I agree with you this needs to stopped before we become Norte Mexicano.
“In 1965, the late Senator Ted Kennedy pressed hard for the immigration legislation-it was the first bill he managed through to passage- that eliminated the so-called ‘national origin’ quotas that had been used to keep the flow of immigrants into the U.S. overwhelmingly European. Confronting critics of the bill who had the foresight to question whether it would result in torrential flows of peoples from impoverished lands that would strain America’s ability to assimilate them, Kennedy dismissed even the suggestion that the ethnic and cultural balance of the nation would be impacted and, in a portent of strategy employed by the proponents of mass immigration ever since, he accused the bill’s critics of bigotry.”
I beg to differ
That person is subject to the jurisdiction of whatever country he came here from and MUST be returned there ASAP!
Yes, I am. That is currently how the law is and has been interpreted for some time (100 years, more?) I know that some college admissions cases have been surprised to find they had American citizenship because of it.
Sorry no. Colleges and Universities have been dealing with this issue for many decades. The paper work for non citizens is different than the paperwork for citizens. University legal work tends to be very good. I’m sure they have their ducks in a row on this practice of so many decades.
Okay, ignore facts because you’re convinced that the universities must have their ducks in a row.
I hope Kobach, puts the kibosh on illegal immigration
I am not convinced that the term “subject to the jurisdiction thereof” is equivalent to “having both (or one) feet inside the border thereof”.
This would be a superfluous clause as the state “having both (or one) foot inside the border thereof” is covered by the prior “All persons born or naturalized in the United States.”
This is a different statement of some of the opinions already posted.
One for the SCOTUS. Stay tuned.
Citizenship for the new born of illegal entrants was intitally based on a throw-away comment that appeared in a dissent (cite not at my fingertips).
Even the ambassador of Ireland was subject to the jurisdiction until the U.S. decided to grant him immunity. Obviously, everyone not specifically granted immunity is said to be subject to the jurisdiction. The most sensible interpretation is that "subject to the jurisdiction" did not mean subject to the obvious, but was clearly intended to mean subject to the "sole" jurisdiction.
Folks should not believe for a moment that illegal entrants are subject to the sole jusridiction of the U.S. If so, how is it the native country of an illegal entrant accepts them back when we deport them?
No, because they and their parents weren’t brought here as slaves.
No. They are legally subject to the jurisdiction of their home country.
Thanks.......So Brennan and Kennedy killed America.
Good article by Ann. I’ll have to read more on Brennan.
Smith is born in America to illegal immigrants. He grows to adulthood and commits a federal crime. At trial, he pleads that he is “not subject to the jurisdiction” of the United States and must therefore be released, or at most deported.
How do you rule?
For an old man, you are an idiot. Illegal aliens are NOT subject to our jurisdiction. They are not here legally. PERIOD. The are subject to DEPORTATION, however.
Ark's parents were Chinese living in San Fransisco. He was born in San Fransisco around 1868. His parents were not citizens. They returned to China when he was a boy. In the 1890’s, Congress imposed immigration restrictions on the Chinese. Ark was denied entry in 1894 by the U.S., using the argument that since neither of his parents were citizens and he was a subject of the Emporer of China, he was not a citizen. He sued saying he was a citizen due to the language of the 14th Amendment.
The Supreme Court decided in his favor.
That is the law. If you want it to change, change the Constitution.
Therefore Anchor babies are a different issue than citizenship because the baby and the mother are two different persons. (also the idea that the mother is "entitled" to stuff from the government is a problem of socialism and has nothing to do with the constitution)
"The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S."
This isn't true. They knew the ramifications of the amendment and debated it's consequences.
"May 30 began with Senator Howard proposing to add the citizenship clause to § 1 of the Fourteenth Amendment as follows: "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." This language was designed to settle the issue raised in Dred Scott that is, who are citizens and thus have the bundle of rights appertaining to citizenship. After a raucous debate over making Indians, coolies, and gypsies citizens, the Senate passed Howard's language." http://www.constitution.org/col/intent_14th.htm
No kidding. The author somehow managed to write an entire damned article about the Citizenship clause, without actually quoting the relevant part of the 14th Amendment.
The only possibly weasel-wording that could justify an answer of "no," would be some sort of argument involving the definition of "subject to the jurisdiction."
So much for that particular canard.
Smith is born in America to illegal immigrants. He grows to adulthood and commits a federal crime. At trial, he pleads that he is not subject to the jurisdiction of the United States and must therefore be released, or at most deported.
How do you rule?
I rule that he is an ILLEGAL INVADER. What does America do to illegal invaders?
I would not mind putting him at Guantanamo and let him have his trial there.
At least they were her legally, unlike McCain’s lettuce pickers.
His parents were here legally and so were subject to the jurisdiciation of the US.