Birthright Citizenship

I just got back from a trip to the Middle East that included Petra. The old knight that guards the Holy Grail is a big fan of the blog.  (“You have chosen wisely.”)  I find that these sorts of vacations are essential if you want to keep on writing and thinking clearly.  It’s a bit like the Monty Python sketch about “Confuse-a-Cat” — the best way to get out of a rut is by turning things upside down for a week or so.

I see that while I was away there was a renewed call for legislation that would eliminate birthright citizenship for children born here to illegal immigrants.  As I explained in this article, such a law would almost certainly be unconstitutional.  On the other hand, there is no Supreme Court holding on the question (Wong Ark Kim — an 1898 decision — gets close, but it can be distinguished if you try hard enough), and it is inevitable that the issue will be litigated either though a federal citizenship repeal or via a state statute denying birth certificates to these children.

You may also like...

7 Responses

  1. Ken Rhodes says:

    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 am at a loss to understand what argument might preclude children of illegal immigrants from the category of “subject to the jurisdiction.” Forget about bogus analogies for just a moment, and try to formulate an argument on its own merit in that regard.

    It’s impossible.

  2. Art Hinshaw says:

    At the end of the 2010 legislative session, the lawmaker who sponsored SB 1070 in the Arizona Legislature openly said that he will propose legislation that does this very thing. Presuming it passes both houses, which is likely given the traction immigration has given many local politicians, the Governor will sign it into law b/c her reputation was made on being tough on immigration (signing SB 1070). Get ready to hear plenty about “anchor babies” in the next year.

    To reply to the comment above, the argument for this line of legislation goes to the original intent of the 14th Amendment. It was written so there would be no question whether ex-slaves were citizens and then in the Slaughterhouse Cases (1870s) a unanimous Supreme Court stated:

    “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

    So the argument will focus on this statement of intent, and it will try to discount the subsequent Wong Kim Ark case, which stated:

    “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

    You’ll hear plenty about activist Supreme Court justices from the 1890s.

  3. Wong Ark Kim VI says:

    You don’t have to try very hard to distinguish Wong Ark Kim. I expect to hear proposals for a line drawn between US-born children of “permanent domiciliaries,” like Wong Ark Kim’s parents, and those born of parents with impermanent domiciles, esp. the undocumented.

  4. Ken Rhodes says:

    From this morning’s NY Times:

    “If you are an illegal immigrant, we clearly have not given you permission to reside here,” said Rosemary Jenks, director of government relations for NumbersUSA, a group that favors decreased immigration. “You are still subject to the jurisdiction of your own country.”

    Well, Ms. Jenks, this is an IQ test. If a Mexican laborer, here in the U.S. illegally, is stopped for speeding, should the American police officer request the Mexican government to issue him a speeding ticket? How about if he is speeding and crashes into my car? Should I go to Mexico to sue him for damages? Or suppose his crash causes my death. Should the police here request the Mexican authorities to charge him with vehicular manslaughter?

    Do you believe this illegal immigrant is not subject to the jurisdiction of the United States? Ms. Jenks, I’m afraid you’ve failed the test.

  5. John says:

    For those arguing the meaning of the 14th Amendment, it may be worth reading the Wikepedia explanation of “birthright citizenship”. See
    It provides a fairly good description of the issues and background behind the discussions of today. Whether you are for or against a revision of the 14th amendment as it relates to birthright citizenship for children of illegal aliens, it is still worth reading the history.

    Note specifically under the paragraph entitled “Subject to the jurisdiction thereof”, it appears that in 1873 the Attorney General of the US felt the need to further define the term “jurisdiction” as it relates to “aliens”. He ruled that jurisdiction must be “absolute and complete”. Apparently he concluded that “aliens” were affected by U.S. jurisdiction only “to a limited extent”.

    Also, note the paragraph “United States vs Wong Kim Ark” that the Supreme Court has never ruled on a case of children born to “illegal immigrants”.

  6. Matt Lister says:

    Historian Greg Robinson has a terrific and informative series of posts up over at the Faculty Lounge blog on this issue, focusing in particular on the last time the courts seriously considered the issue, in relation to attempts to remove citizenship from Japanese Americans born in the U.S. The posts do quite a good job of showing how race is never far in the background of these debates. I strongly recommend that people interested in this issue check out Robinson’s posts there.

  7. Ken Rhodes hasn’t read his history. Being “subject to the jurisdiction” of the United States does not mean “being subject to police power” of the United States.

    When that clause was written, it meant that a person was subject to the complete jurisdiction of the United States and owing no allegiance to a foreign country. This was well-documented in the Senate floor statements during the formation of the 14th Amendment, and they’re available online.

    See also the 1866 Civil Rights Act, which was the model for the 14th Amendment in 1868. It originally used the phrase, “not subject to any foreign power.” This was later changed to “subject to the jurisdiction” of the United States in the 14th Amendment, and the authors felt it to mean the same thing.

    Is an illegal alien subject to a foreign power? Of course! An illegal alien from Mexico living in the United States is still a Mexican, and he has no other citizenship. If Mexico were to have a draft, the illegal alien could absolutely be called up.

    Read a good report detailing the history:

    “Birthright Citizenship in the United States: A Global Comparison”