Rethinking Birthright Citizenship
This is interesting, though it’s from 2005.
Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power – i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship.
Here is the pertinent text from the 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.
I think it’s pretty clear from that clause that in order to be able to claim birthright citizenship in the United States you must meet two criteria:
- Be born in the United States.
- Be subject to the jurisdiction of the United States.
Obviously a child born to illegal immigrants here in the United States meets the first criteria, but does the child meet the second criteria?
I don’t think so. Illegal immigrants are, by definition, subjects of another nation. Most illegal immigrants who are currently in this country are citizens of Mexico, for instance. Thus, by definition, these illegal immigrants are not subject to U.S. jurisdiction. They’re often detained by law enforcement here in the U.S. and charged/convicted of crimes, but ultimately they are Mexican citizens and subject to the jurisdiction of that country, not this one.
That America exercises jurisdiction in the absence of any willingness on Mexico’s behalf to exercise jurisdiction does not change that fact.
Consider Americans traveling abroad in, say, France. If an American is in Paris and steals a car and then subsequently is arrested that American can be tried and convicted under French laws. Does that mean the American is subject to France’s jurisdiction? Only so far as the American government is willing to allow. And usually our government does allow American civilians to stand trial for crimes they’ve committed in foreign courts as long as there are assurances that the trial will be in keeping with the rights American citizens are granted by our Constitution.
For most countries to which Americans routinely travel there are treaties and agreements in place as to how to deal with foreign citizens who commit crimes, but none of these treaties change the fact that the foreign citizen in question is ultimately under the jurisdiction of his/her home country, not the country he/she is in.
Because of this, I don’t think that children born in the United States to illegal immigrants (or other people who are in the U.S. but not citizens) are automatically citizens of this country. Now, obviously, the federal courts have ruled otherwise using reasoning contrary to mine, but I think the Constitution is actually pretty clear on this subject.
It’s just sad we’ve gone away from it.
