Is Birthright Citizenship Really in the Constitution?

House Judiciary Comm. Ranking Republican
Rep. Lamar Smith (TX), said on Aug. 10th,
“We do not need to amend the
Constitution to end birthright citizenship.”

Congress could deny birthright citizenship to the children of illegal immigrants, say some experts. But others believe that changing citizenship policy requires changing the 14th Amendment.
Peter Grier asks the subject question in anarticle on The Christian Science Monitor.

Is “birthright citizenship” – the policy of granting US citizenship to every child born on national soil – really enshrined in the US Constitution? Some experts believe it isn’t.

Congress, they say, could regulate who qualifies for birthright citizenship via legislation, within limits. Lawmakers might deny it to children born in the US to illegal immigrants, for example.

This could be an important legal distinction. Circumscribing birthright citizenship with a bill would be very difficult, particularly while President Obama remains in office. But doing the same thing via the direct route of amending the Constitution would be virtually impossible.

“We do not need to amend the Constitution to end birthright citizenship,” said Rep. Lamar Smith (R) of Texas in a statement issued Tuesday.

Birthright citizenship is a hot topic in Washington nowadays because some congressional Republicans have become increasingly vocal about a desire to deny such status to the children of parents who are residing in the US illegally. The GOP leaders of both the House and Senate have said they favor holding hearings on the issue, at the least.

Many legal scholars believe that changing the policy would require changing the 14th Amendment to the Constitution, on which birthright citizenship is based. But “many” legal scholars is not the same thing as “all.”

Section 1 of the 14th Amendment begins this way: “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.”

The key phrase here is “subject to the jurisdiction thereof,” say some experts.

Illegal immigrants are not subject to US jurisdiction, in the sense that they cannot be drafted into the US military or tried for treason against the US, said John Eastman, a professor at the Chapman University School of Law, in a media conference call Monday. Their children would share that status, via citizenship in their parents’ nation or nations of birth – and so would not be eligible for a US passport, even if born on US soil, according to Dr. Eastman.

Furthermore, federal courts have upheld the right of Congress to regulate naturalization policies over and above the basic constitutional guarantee, according to Eastman. Taken together, he says, all this means lawmakers, if they choose, could deny birthright citizenship to the children of parents here illegally.

“The 14th Amendment is a floor, but how far above that floor we go is a matter of basic policy judgment that our Constitution assigns exclusively to the Congress of the United States,” said Eastman on Monday.

Perhaps the defining Supreme Court ruling in this area is US v. Wong Kim Ark, an 1898 case in which justices upheld the US citizenship of a child born on US soil to Chinese immigrant parents. The parents were in the US legally, however. “The courts apparently have never ruled on the specific [issue] of whether the native-born child of illegal aliens as opposed to the child of lawfully present aliens may be a US citizen,” concludes a 2005 Congressional Research Service report on birthright citizenship.

Defenders of the current US interpretation of birthright citizenship say that a century of legal precedents supports their view that it is defined by the Constitution itself and is beyond the reach of congressional reinterpretation.

The wording of the 14th Amendment means what it says, they say. The “subject to the jurisdiction” phrase today excludes the children of diplomats, who are immune from most US civil and criminal laws by treaty. “Those who want to read it narrowly ... are simply wrong,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, in a recent conference call.

Bill Smith, ARRA Editor: Why the question? We have a this question and the problem because of failures by the US Government. First, the US Government did not secure our borders. Second, the U.S. Government did not keep tract of visitors on visas and on those who skipped on their visas and stayed in the U.S.. Third, the U.S. Government allowed too many people to come here on temporary visa and "green cards" to work. Fourth, the United States Government did not solve this birthright issue long ago. I am sure the readers could add to this list.

What were bureaucrats thinking? Did they believe that visitors and illegals coming to our country would not have had sex or would not have sex after their arrival in the U.S. - thus, no babies would be born on U.S. soil? I think not. I think that some government bureaucrats have kept kicking the can down the road on this problem while other bureaucrats have sought ways to manipulate the situation for political gain. In either case, both were wrong. The rest of the world must be snickering at the U.S. over this and numerous other issues. A country that doesn't control and secure it borders and fails to control visitors, is doomed to a shortened future. Remember those "Huns" who helped to bring down the Roman empire?

Regardless, it is time to stop Birthright Citizenship for children when neither of the children parents are U.S. Citizens. While I believe babies born to foreign parents (including illegal aliens) should return home with their parents as citizens of the parents native countries, I realize like everyone else that the US Government has not taken effective steps to handle illegal immigration since President Eisenhower.

Therefore, I can see the that a reasonable accommodation may be to allow children born to foreign parents on U.S. soil and living within the U.S. a majority of their childhood years to opt to become legal citizens after their 18th birthday through the normal naturalization process. I still disapprove of illegal aliens and other adults who violated their visitor visas, etc., benefiting. They should be responsible for their actions and be returned to their home countries. But I also believe that since the U.S. government failed to properly address this situation, the above accommodation would be reasonable for children born in the U.S. and living here the majority of their lives without any criminal records to elect to make the United States their permanent home and to become become naturalized citizens. However, these young naturalized citizens should not be allowed to sponsor their parents who had been here illegally until after reaching age 25 and have proved that they have the financial means without government assistance to fully support their parents both before or after they become legal residents. Sorry, only one bite of the apple on charity with me.

Yes, I know this is simplistic and government can make the simple complex. I favor Rep Lamar Smith position on birthright citizenship over that of those who advocate that being lucky enough to be in the U.S. on vacation (or having sneaked into our country illegally) grants their children the right to be U.S. citizens. But, as identified above, I was willing to identify an accommodation for many of the children.  So, what do you have to offer or say?

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