Ending "birthright citizenship"

last Amendment, the Twenty-Seventh, addresses compensation of Senators and members of the House of Representatives.

The Fourteenth Amendment to the Constitution of the United States reads, “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.” (U.S. Const., Amend. XIV, §1). Proponents of ending Birthright Citizenship through repeal of the Fourteenth Amendment often argue that the parents of children born to “aliens” — both undocumented and those present in the United States lawfully —are not “subject to the jurisdiction” of the United States and, therefore, their children born in the United States are not U.S. citizens.

Such a contention seemingly defies logic. Black’s Law Dictionary defines “jurisdiction” as “[a] government’s general power to exercise authority.” “Aliens,” both undocumented and those lawfully present, are clearly under the U.S. government’s “general power to exercise authority.” If they were not under the jurisdiction of the United States, “illegal aliens” would not be “illegal.” How then can one argue that the children of “aliens” — legal and otherwise — are not U.S. citizens because they themselves are not “subject to the jurisdiction” of the United States? The only classes of people that have been deemed not subject to the jurisdiction of the United States while physically present therein are foreign diplomats, enemy combatants, and Native Americans not subject to taxation.

Congress specifically adopted the “Citizenship Clause” of the Fourteenth Amendment in order to constitutionally overrule the decision of the Supreme Court of the United States in the infamous Dred Scott case. In Dred Scott, the Court specifically denied Birthright Citizenship to the descendents of slaves (Scott v. Sanford, 60 U.S. 393 (1857)). In response, Congress proposed and the States ratified the Fourteenth Amendment.

The Birthright Citizenship of the Fourteenth Amendment was not a novel creation. Birthright Citizenship simply codifies the longstanding English Common Law jus soli tradition. That is, citizenship determined by place of birth. Though many native-born U.S. citizens may also be so jus sanguinis — “through the blood” of their parents — in order to be classified as a U.S. citizen by virtue of the citizenship of one’s parents, application must be made to United States Citizenship and Immigration Services for a Certificate of Citizenship (See e.g., 8 United States Code §§1103, 1401, and 8 Code of Federal Regulations §301).

In 1898 the Supreme Court of the United States specifically held that a child born in the United States to “alien” parents is a U.S. citizen under the Fourteenth Amendment (United States v. Wong Kim Ark, 169 U.S. 649, 652–53 (1898)). In Wong Kim Ark, the Court stated, “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”

Another tack taken by opponents of the Fourteenth Amendment is to end Birthright Citizenship by statute. Legislation previously introduced by retired Georgia Congressman Nathan Deal has gained a proponent in California Representative Gary Miller. Texas Congressman Lamar Smith, the top Republican on the House Judiciary Committee, is among the ninety-three cosponsors of the measure. Such attempts to alter the Fourteenth Amendment through legislation are of questionable constitutional veracity at best but do have very solid and knowledgeable proponents (See Oforji v. Ashcroft, 354 F.3d 609, 620–21 (7th Cir. 2003) (Posner, J., concurring).

Others advocate sending back the children born in the United States to legal and unauthorized “aliens.” Unfortunately for such advocates there is no “back” to which to send them. They were born here.

In the end, we can only wait and see how efforts to end Birthright Citizenship evolve, but it remains puzzling how denying citizenship to infants in the country in which they were born will do anything to effect the flow of immigrants — legal and otherwise — to the United States.

David Palinsky, Homeland Security NewsWire’s legal analyst, is an attorney specializing in immigration cases involving employment-based immigration related to the homeland security, hi-tech, and services sectors