Here is today’s column in USA Today giving a bit of constitutional and historical context for the raging debate over illegal immigration.
The 14th Amendment doesn’t answer this question, as today’s immigration debate exposes unsettled business.
BYLINE: Jonathan Turley
The raging debate over illegal immigration has grown on a steady diet of rhetoric and recrimination. However, beneath all the hyperbole is a long-standing and unresolved debate over what it means to be a citizen. It turns out that the most foundational right contained in the Constitution — citizenship itself — is poorly defined and even more poorly understood.
There has long been a conscious avoidance of the question over so-called birthright citizenship — citizenship claimed by the children of illegal aliens. Indeed, the question has become increasingly difficult to address as the numbers of birthright citizens grow each year. In 2008, one in 12 babies in this country was born to illegal immigrants — 8% of all births. This is not counting the millions of prior such births, often referred to by critics as “anchor babies.” With any change in the definition of citizenship assuring tremendous social changes and upheaval, the question has been left unresolved for more than two centuries.
Muddled then, muddled now
Given our roots, it should not be too surprising that citizenship was left ill-defined by the Framers. After all, this was the nation formed by citizens of other nations — a common covenant based as much on what we rejected as what we embraced. Indeed, in the Declaration of Independence, we defined ourselves largely by process of elimination — we would no longer live by the long list of examples of “absolute Despotism.”
Notably, one of the complaints was that the king “endeavored to prevent the population of these states; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.”
Of course, the matter became more complex with the ratification of the Constitution and, more important, the later adoption of the 14th Amendment in 1868. That amendment spoke directly to the issue of citizenship, stating in the very first line: “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 amendment has become the battleground for opponents and advocates of birthright citizenship, with each side claiming clarity in its meaning. The fact is that the record was as muddled then as it is now.
The 14th Amendment was adopted in response to the infamous Dred Scott decision denying former slaves the protections of citizenship as well as “Black Codes” that created barriers to former slaves in the South. On its face, the language would appear to support birthright citizenship. However, it has long been argued that such children are not “subject to the jurisdiction” of the United States because their parents are properly subjects of their home country.
The original debate itself offered support to both sides of today’s debate. The drafter of the Citizenship Clause — Sen. Jacob Howard of Michigan — stated clearly that the clause did not include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” This view was supported by critical leaders such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois. However, other senators like John Conness of California believed that anyone born in the U.S. would be a citizen.
Citizenship elsewhere
This debate between jus soli (law of the ground) and jus sanguinis (blood right) continues to divide leaders and nations with debates similar to our own. Many countries have long recognized jus soli, or birthright citizenship. Indeed, at the time of our founding, England recognized birthright citizenship. In Calvin’s Case in 1608, the court ruled that “a person’s status was vested at birth, and based upon place of birth — a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.”
Conversely, nations like Germany follow jus sanguinis, establishing citizenship by one’s ancestors or connections to the country as opposed to merely birth location. Other countries have a hybrid approach. The United Kingdom, for instance, requires that the parents be legal residents.
For its part, the U.S. Supreme Court has never directly ruled on the issue of birthright citizenship. In 1898, in United States v. Wong Kim Ark, the court found that the child of Chinese immigrants was still a citizen under the 14th Amendment because he was born on U.S. territory. However, his parents were here legally as permanent residents.
Congress could force the issue into the courts through legislation. Yet, the Supreme Court would in all likelihood rule in favor of birthright citizenship. This process — legislative and then judicial — would unfortunately short-circuit the national debate. Some senators, as well as others, are pushing for a constitutional amendment, which is a better approach for this type of question. While the Framers made the amendment process difficult, it was designed for this type of question — to prevent “impulse buy” amendments adopted in the heat of passion and anger.
Since the founding, we have spent more time defining the rights of citizens than citizenship itself. It is not clearly answered in the history or language of the Constitution, despite representations on both sides of the debate. Rather than continuing to question the citizenship of millions, we should first resolve what it is to be a citizen. It is not a new question, but it is a question that we might now want to answer.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Hold on. What if a baby is born in Missouri but it was conceived in Kenya?
Mike Appleton, exactly right, and furthermore, the “separate individual” needs welfare and Medicaid and all the entitlements and it should be able to file lawsuits through its next friend.
I’d must examine with you here. Which is not one thing I usually do! I enjoy reading a put up that can make individuals think. Additionally, thanks for permitting me to comment!
Con Law Prof Ron Rotunda has weighed in on the issue of citizenship by birth.
QUOTING One method of acquiring U.S. citizenship is to be born here. The very first sentence of the 14th Amendment provides that one born in the United States “and subject to the jurisdiction thereof” is an American citizen.
Some people are now arguing that we reinterpret that clause to deny “birthright” citizenship to children of illegal aliens born in the United States. They argue that illegal aliens are not “subject to the jurisdiction thereof” so that their children (and their children’s children) cannot be U.S. citizens.
But, illegal aliens, like the rest of us, are indeed subject to the jurisdiction of the U.S. If they do not know that, they quickly learn it if they speed in traffic or violate any other law. The 14th Amendment does not require that the alien must be subject to the “allegiance” of the United States. Foreign nationals (whether legal tourists or illegal immigrants) do not swear allegiance to the United States, but they are all subject to our jurisdiction. The only people who are not required to obey U.S. law are foreign diplomats (because they have diplomatic immunity) and enemy soldiers invading or imprisoned in our territory (because they have combatant immunity). Only their children are not U.S. citizens.
That is what the cases have said thus far. Thus, in United States v. Wong Kim Ark, the U.S. Supreme Court ruled in 1898 that a U.S.-born child of Chinese immigrants was constitutionally entitled to citizenship. The alien parents were subjects of the emperor of China, but the child was born in the United States.
Granted, his parents were not here illegally at the time, but the Supreme Court has always treated the children of illegal aliens as U.S. citizens if they are born here, even if it has not decided the precise issue. For example, in 1985, the court ruled on a case where an illegal immigrant gave birth in the United States. Although both parents were here illegally, the court remarked, with no dissent, that the “wife had given birth to a child, who, born in the United States, was a citizen of this country.” END QUOTING
Read on at:
http://www.chicagotribune.com/news/opinion/ct-oped-0916-birthright-20100916,0,4594378.story
This confirms nal’s point that you are subject to a country’s jurisdiction if it can arrest you.
It also confirms Capitol Mike, who noted that only diplomats and enemy military forces are exempt. There is little merit to the claim that the children of illegal aliens or any other aliens are not subject to U.S. jurisdiction.
And they are not “subject to the jurisdiction” of any other countries, including the countries of their parents, since those countries cannot arrest the parents, and cannot take the infant into the custody of their own social services
Woosty,
I get where you’re coming from and it’s a good place. However, one of the reasons that the recalcitrant idiots cause so much stir is that they use lies and hyperbole and our side answers with reasoned debate. In a world that has become oriented to the sound byte and that steers clear of reasoned rhetoric, their “Goebbels-Esque” big lie tactics are effective beyond the salient fact that they control the media. When we enter into reasoned debate with them, we lose the “sound byte” game and the general public having grown up with its’ superficiality tunes out.
I thought that’s what I’ve been doing.
A verbal Dark Knight.
A hard hitter willing to get a bit dirty for justice and obviously not wearing hockey pads.
45 Buddha Is Laughing
1, September 15, 2010 at 7:04 pm
Awkward construction:
“the destruction of the delusional thinking that induced fear created by bad men creates in what would otherwise be reasonable and good people with their hyperbole, ridicule and other shameful tactics.”
SB
“the destruction of the delusional thinking that induced fear created by bad men with their hyperbole, ridicule and other shameful tactics creates in what would otherwise be reasonable and good people.”
I blame cat juggling. I have a medicated cat here that’s requiring a bit more attention than usual. He’ll be okay, but the meds have him a bit woozy (not to be confused with Woosty).
46 Buddha Is Laughing
1, September 15, 2010 at 7:08 pm
lol
I guess that would make me Catman?
47 Woosty’s still a Cat
1, September 15, 2010 at 11:29 pm
yup, Catman the ratfighter..;)
48 Rhubarb
1, September 16, 2010 at 5:59 am
A wise man wrote
Happiness is a warm cat
49 Rhubarb
1, September 16, 2010 at 6:00 am
or should that be Cats are happiest in the warm?
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Woosty,
I get where you’re coming from and it’s a good place. However, one of the reasons that the recalcitrant idiots cause so much stir is that they use lies and hyperbole and our side answers with reasoned debate. In a world that has become oriented to the sound byte and that steers clear of reasoned rhetoric, their “Goebbels-Esque” big lie tactics are effective beyond the salient fact that they control the media. When we enter into reasoned debate with them, we lose the “sound byte” game and the general public having grown up with its’ superficiality tunes out.
“I thought that’s what I’ve been doing.
A verbal Dark Knight”
Buddha,
That’s why you’re one of my heroes.
or should that be Cats are happiest in the warm?
A wise man wrote
Happiness is a warm cat
yup, Catman the ratfighter..;)
lol
I guess that would make me Catman?
Awkward construction:
“the destruction of the delusional thinking that induced fear created by bad men creates in what would otherwise be reasonable and good people with their hyperbole, ridicule and other shameful tactics.”
SB
“the destruction of the delusional thinking that induced fear created by bad men with their hyperbole, ridicule and other shameful tactics creates in what would otherwise be reasonable and good people.”
I blame cat juggling. I have a medicated cat here that’s requiring a bit more attention than usual. He’ll be okay, but the meds have him a bit woozy (not to be confused with Woosty).
W=c,
I submit that sometimes the appropriate weapon to fight fire is fire. Creation and protection often require a little destruction. In this case, the destruction of the delusional thinking that induced fear created by bad men creates in what would otherwise be reasonable and good people with their hyperbole, ridicule and other shameful tactics.
As to Mike S.’s assertion, “We should debate them using hyperbole, ridicule and all the other shameful tactics they use, except for copying their lying natures.”:
I thought that’s what I’ve been doing. 😉
A verbal Dark Knight.
A hard hitter willing to get a bit dirty for justice and obviously not wearing hockey pads. 😀
Mike Spindell 1, September 15, 2010 at 1:37 pm
“We should debate them using hyperbole, ridicule and all the other shameful tactics they use, except for copying their lying natures.
——
Sadly Mike, I haven’t the same level of talent for drecht that ‘they’ do. Once a rabid dog bites….you must prevent the infection from spreading, there is a counter to fear and ugliness, and mirroring has its place, but I have found that only time and the growing calm of reason is a proper antidote.
We are what we eat…and sometimes we eat the wrong things…puking helps. I wouldn’t pass the same slop along to others. What good can come of it?
pete,
lol
I stand corrected for not taking the latest technology into account.
BIL
a sonogram and ASL. if they’re an anchor baby the j sign will look like a y.