Posted on 01/27/2011 10:51:23 AM PST by SeekAndFind
While 2010’s immigration debate centered on the controversial Arizona law, 2011’s 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 Arizona’s 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 immigrant’s 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.
“They’re 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 Obama’s, according to White House press secretary Robert Gibbs. In Tuesday’s 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 today’s illegal immigrants to the gypsies present in this country when the Fourteenth Amendment was debated. Gypsies didn’t 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 they’re taking away from our citizens, and the benefits they’re 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. “It’s a moderate incentive for people to come here illegally, and it’s 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 it’s important for immigration skeptics to make clear that they’re not immigrant skeptics,” he says.
Kobach brushes off concerns that the initiatives aren’t 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 didn’t favor it.
But Aguilar is adamant that the initiatives will “antagonize Latino voters.” And that could have a long-term impact. “It’s pretty clear that if we don’t win 30 to 40 percent of the Latino vote in the next election,” he says, “we’re not going to win back the White House.”
— Katrina Trinko is an NRO staff reporter.
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."[138] 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.[139]" 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.
Wonder why?
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."
Ping!
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.
The problem with that argument was that there was no such thing as “legal” or “illegal” immigration status at that time.
Thus the problem with the language of the 14th amendment.
I’m not sure I understand... how then was congress able to exclude Chinese from immigrating in 1882? That implies they were coming here on some sort of legal basis beforehand.
The Framers of the Fourteenth Amendment explicitly said birthright citizenship belonged to those who were *completely* within the jurisdiction of the United States. They said that meant people who did not hold allegiance to any one else ( foreign governments/powers ).
The SC rulings in Slaughterhouse, and Elk vs. Wilkins, affirmed this had been the Framers intentions.
Wong is as convoluted, in its own way, as the Miller decision regarding gun control.
During this first rash of immigration “debates”, the Ark decision was handed down.
Read the arguments for those that sided with Ark and those that dissented in the opinion. You will be amazed at how close the arguments are on this thread.
But the law is the law and for 112 years this argument has been settled.
If we want it changed, we need to change the Constitution.
Have you read the decision? Seriously?
Yes, the majority ruling leaves the premise extremely wide open, but the fact remains that there has not been a specific ruling on this (yet, although I feel it’s inevitable.)
However, there is certainly no denying the intent of the law.
There is also no reason why Congress couldn’t close this loophole nor is there any reason it would require “changing the Constitution”.
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
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That doesn't sound "extremely wide open" to me. It's pretty cut and dry.
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