Friday, April 1, 2011

Guest Blogger McKay Cunningham on the Divisiveness of Birthright Citizenship

Few take the middle ground or are undecided. Websites devoted to the topic are rife with dire projections, and the comments posted by individuals after any given article are too often vitriolic.

But what does the Constitution actually say about birthright citizenship? What legal grounds support those who argue that children born in the U.S. to illegal immigrants are not U.S. citizens?

The legal arguments focus, of course, on the language found in the Constitution itself. The Fourteenth Amendment (ratified in 1868) states:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States…”

Most legal scholars agree that this provision contains two prongs: (1) persons born in the U.S., and (2) persons subject to the jurisdiction thereof. It is this later phrase, “subject to the jurisdiction thereof,” that spurs legal disagreement.

Opponents of Birthright Citizenship

Those opposed to birthright citizenship argue that “subject to the jurisdiction thereof” includes an allegiance component. If a person is born within the territorial boundaries of the U.S. and owes allegiance to the U.S., that person is a citizen. Because those who are in the U.S. unlawfully owe primary allegiance to the country of their origin, their children (by imputation) would also owe primary allegiance to that nation and therefore would not be citizens under the Fourteenth Amendment.

Is there any legal authority for interpreting “subject to the jurisdiction” to include allegiance? What did those who drafted the phrase intend for it to mean? Opponents of birthright citizenship point to the Congressional debates that took place prior to ratification of the Fourteenth Amendment in order to discern the intent of the drafters. At one point during the debates, congressmen suggested that that the phrase would not confer citizenship on children born of Native American parents because Native Americans owed primary allegiance to their respective tribes. This insertion of “allegiance” during the congressional debates bolsters the argument that “subject to the jurisdiction thereof” requires allegiance to the U.S. before citizenship will be awarded.

There is little case law support, however, for this contention. A few U.S. Supreme Court decisions handed down shortly after the Fourteenth Amendment was ratified imply that the Amendment narrowly applies to African Americans alone. As discussed below, this view has not prevailed.

Proponents of Birthright Citizenship

Those who support birthright citizenship argue that “subject to the jurisdiction thereof” means nothing more than what it says – subject to the power of the U.S. If a person is born within the territorial boundaries of the U.S. and that person is subject to the power or laws of the U.S., that person is a citizen. Because children of illegal immigrants born in the U.S. are subject to the power and/or laws of the U.S., they are citizens.

Like those who oppose birthright citizenship, proponents point to congressional debates as authoritative support. Indeed, at one point during the debates, congressmen agreed that children born to Chinese nationals within the U.S. would automatically obtain citizenship. This portion of the debate supports the idea that “subject to the jurisdiction” merely means subject to the laws of the U.S.

Several Supreme Court decisions support this interpretation. Chief among them is Wong Kim Ark, a 1898 opinion that reviewed the history of birthright citizenship in England and the U.S. The Court articulated the English common law rule “of citizenship by birth within the dominion.” No allegiance component was required. Indeed, several U.S. Supreme Court cases have reiterated this concept. Although opponents of birthright citizenship quibble that these opinions are not authoritative for a variety of hyper-technical reasons, the clear import of the case law addressing the Fourteenth Amendment supports birthright citizenship.

Constitutional Consensus

Because the language of the Fourteenth Amendment does not textually include “allegiance,” and because Supreme Court precedent has not embraced an interpretation that includes allegiance, most constitutional scholars submit that birth within the U.S. plus an obligation to obey U.S. law confers citizenship under the Fourteenth Amendment. Recent efforts pushed by a handful of states to create tiered citizenship for those born in the U.S. by parents who are unlawfully present in the U.S. are most assuredly unconstitutional. But that is an altogether different topic….

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