14th Amendment: Is birthright citizenship really in the Constitution?

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.


The House Judiciary Committee Ranking Republican Rep. Lamar Smith, R-Tex., speaks during a news conference on Capitol Hill, in Washington on Aug. 10. “We do not need to amend the Constitution to end birthright citizenship,” he said Tuesday.

Drew Angerer/AP





By Peter Grier, Staff writer / August 11, 2010 Washington

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.
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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.

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Birthright Citizenship

HERE ARE ALL THE DEVELOPED NATIONS OF THE WORLD
THAT OFFER BIRTHRIGHT CITIZENSHIP TO THE BABIES
OF TOURISTS AND ILLEGAL ALIENS:

• United States

That's right, every other modern Developed nation in the world has gotten rid of birthright citizenship policies.

Yet, most of U.S. news media and politicians the last two weeks have ridiculed the comments by some other politicians that it is time for the U.S. to put an end to birthright citizenship for tourists and illegal aliens.

Folks, the U.S. stands alone.

ACTION: Send faxes to your Members of Congress and urge them to immediately sponsor legislation to change the law that currently grants birthright citizenship.

Find the faxes to send on your customized Action Buffet by clicking here.

There used to be all kinds of Developed countries that gave away their citizenship as freely as we do in the U.S. But one by one they all have recognized the folly of that policy.

SOME MODERN COUNTRIES THAT RECENTLY
ENDED THEIR BIRTHRIGHT CITIZENSHIP POLICY

• Canada was the last non-U.S. holdout. Illegal aliens stopped getting citizenship for their babies in 2009.
  
  
• Australia's birthright citizenship requirements are much more stringent than those of H.R. 1868 and took effect in 2007.
  
  
• New Zealand repealed in 2006
  
  
• Ireland repealed in 2005
  
  
• France repealed in 1993
  
  
• India repealed in 1987
  
  
• United Kingdom repealed in 1983
  
  
• Portugal repealed in 1981

The United States is the laughing stock of the modern world. Only the U.S. values its citizenship so lowly as to distribute it promiscuously to the off-spring of foreign citizens visiting Disney World on tourist visas and to foreign citizens who have violated their promises on their visitor, work and student visas to stay illegally in the country, as well as to those who sneak across our borders.

Click on my blog to join the discussion about this.

Notice we are asking to change the "law" and not the 14th Amendment to the Constitution.

H.R. 1868 by Rep. Gary Miller of California would merely change the federal law (passed by Congress) that currently requires giving U.S. citizenship to these babies.

We and many Constitutional scholars do not believe a Constitutional Amendment is required. But we also know that as soon as H.R. 1868 is passed there will be suits taking it to the Supreme Court. We believe the Supremes are likely to agree with us that H.R. 1868 does not violate any part of the Constitution.

Go to our "5 Great Immigration-Reduction Bills" page to see all the Members of Congress who are attempting to move the U.S. into the 21st century by co-sponsoring H.R. 1868.

THANKS,

The Supreme Decision regarding the Second Amendment

Supreme Court Declares That the Second Amendment
Guarantees an Individual Right to Keep and Bear Arms
-- June 26, 2008

Fairfax, VA – Leaders of the National Rifle Association (NRA) praised the Supreme Court’s historic ruling overturning Washington, D.C.’s ban on handguns and on self-defense in the home, in the case of District of Columbia v. Heller.

“This is a great moment in American history. It vindicates individual Americans all over this country who have always known that this is their freedom worth protecting,” declared NRA Executive Vice President Wayne LaPierre. “Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it. The Second Amendment as an individual right now becomes a real permanent part of American Constitutional law.”

Last year, the District of Columbia appealed a Court of Appeals ruling affirming that the Second Amendment to the Constitution guarantees an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home and possession of functional firearms for self-defense violate that fundamental right.

“Anti-gun politicians can no longer deny that the Second Amendment guarantees a fundamental right,” said NRA chief lobbyist Chris W. Cox. “All law-abiding Americans have a fundamental, God-given right to defend themselves in their homes. Washington, D.C. must now respect that right.”
National Rifle Association (NRA)

The Right to Bear Arms

NRA News | November 15, 2009

Charlton Heston discusses passing on the legacy of the Second Amendment. In this spellbinding performance, the NRA past president challenges Americans to keep freedom's flame alight from generation to generation. Delivered with unedited authenticity reflecting a deep love for his nation, Mr. Heston's eloquent message radiates truth as it lights the American way.

NRA News