Birth Citizenship and the 14th Amendment

The new Administration is pushing for a revamp of our immigration laws and policies with Sen. Schumer taking the lead role at the moment.  We all know that when they talk about “comprehensive” reform that they mean amnesty for the illegals here.  It is only a question of the timing and terms for them to receive their amnesty but the ultimate goal of US citizenship is there for the taking and of course it goes without saying the Democrats will reap a great percentage of those new votes of these newly minted citizens.  As this debate renews itself it would do us all well to revisit at least one of the basic premises of the supporters for this revised policy and for that matter the rulings of some of the courts allowing rights equivalent to those of citizens  in certain instances.  We constantly read or hear in the news that everyone born in the US is automatically a US citizen.  Everyone is under the false impression that anyone and everyone who births a child on US soil makes that baby a citizen.  Even teachers in school glibly propound this proposition.  That is simply not the case.   Illegals who have children here do not confer on those  children automatic citizenship.

Let’s start at a dangerous place by actually reading the Constitution.  In fact take a look at the entire language in the 14th amendment regarding citizenship rather than a portoion of it.  (As always, I urge everyone to get their own copy of the Constitution, one of those little softcover versions, they only cost a couple of dollars.)   It is to be remembered that the Constitution does not define citizenship anywhere except in the 14th Amendment and that was done about 75 years after the Constitution and Bill of Rights became law.  The pertinent portion reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States….”.   All attention is given to the first clause of that sentence about being born or naturalized here.  But the clause has a second requirement that is completely ignored by everyone.  The “and” is conjunctive and critical.   To be a US citizen you have to fulfill both of the provisions in that clause.   Simply being born in the US does NOT make you a citizen unless you are subject to the jurisdiction of the US.

There are several examples that make the rationale for the second phrase apparent.  The most obvious one was the question of the Indians.  That amendment was passed right after the War Between The States and there were still lots of Indians roaming all over the West.  The debates and comments by the politicians made it very clear that the children of Indians were not US citizens.  They were clearly born here but they were  not subject to the jurisdiction of the US. Indeed Indians didn’t become citizens for most of them until 1923 by special act of Congress for those willing to pledge their allegiance to the US.   The concept of jurisdiction went all the way back to British common law and was based on the idea  that every person born within the King’s realm was his subject and owed the King allegiance willingly or otherwise.  That whole notion  was refuted by our Revolution.  Under the monarchial systems of old there wasn’t really a concept of citizenship but a birthright obligation to the King.  That notion was denied in the democracies  that began to emerge in 18th and 19th century when citizenship was voluntary by the governed. 

Everyone on US soil is subject to our criminal laws.  Even diplomats are but they have special exceptions due to the requirements of international relations and they are sent home and never prosecuted.   Whether you are a citizen or not you are subject to criminal prosecution for a violation of law.  That is true in all countries.  Suppose criminals from France came here trying to escape prosecution, a man and a woman.  She is pregnant and while they are on the run she gives birth to a child in Chicago.  That child is not a US citizen because although he was born on US soil he was not subject to the jurisdiction of the US.  He doesn’t meet the requirement of the second phrase of the 14th amendment.  Children follow the loyalty of their parents in the law.  Those parents would not be subject to the jurisdiction of the US, never pledging any loyatly to it.  That language has meaning and has an impact.  It wasn’t placed there merely to fill space on the page.  It would be absurd to make any and everyone who happened to be physically born in the US a citizen.  Those French would not have any allegiance to the US and neither would their child.  None of them are subject to the jurisdiction, by loyalty, to the US. 

Illegal immigrants fall into the same category.  Those parents have no right to citizenship and certainly their children born here don’t either.  Indeed their loyalties are to their home country in the eyes of the law and we are a nation allegedly built on the concept of the rule of law.   Congress could clarify this if it wanted by specifically denying citizenship to anyone born here to parents in the country illegally.  The Supreme Court has only ruled on the issue once in an off hand way but that case has a huge distinction because it was dealing with legal residents and their offspring.  I hope that false arguments about who is and who is not entitled to citizenship will not obfuscate the vital issues we face when dealing with the influx of illegal aliens who by their very actions deny the authority of the US rather than demonstrating any allegiance to it principles.

There are two types of mass in the universe.  The first is gravitational mass which means the attractive force of one body on another.  Then there is inertial mass which references the resistance of a body to any accleration.   Mass is a more scientific word for what we commonly call weight.

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Filed under Foreign Affairs, government, history, immigration

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