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Howard Foster

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Time to End Birthright Citizenship?

Posted: 01/27/2012 1:18 pm

Rep. Steve King (R-Iowa), a hardliner on illegal immigration, has introduced a bill to redefine the meaning of "citizenship." His intent is to exclude the children of illegal immigrants, and to many people's surprise, he has 81 cosponsors. With the calls of moderate Republican senators Lindsay Graham and John McCain to change the law to end what is known as "birthright citizenship," the issue is no longer relegated to the fringe. It's worth examining how we got to this point and why we need to make a change.

Under the current interpretation of the Fourteenth Amendment to the Constitution, all persons born in the country and "subject to the jurisdiction thereof" (the "Citizenship Clause") are U.S. citizens. The amendment was enacted just after the Civil War for the purpose of enfranchising former slaves. However, Congress did not word the amendment in those terms. Rather, as with prior amendments, it expressed itself in broad, grandiose terms. Think of the First Amendment ("Congress shall make no law ... abridging the freedom of speech or of the press"). What is "speech"? Are political action committees covered? We leave it to the courts to decide. The Constitution does not contain definitions. And likewise, the meaning of the Citizenship Clause eludes us. Are the children of immigrants citizens? But in this age of mass immigration, it should not.

Unless we know the meaning of the phrase "subject to the jurisdiction thereof," we simply don't know. The congressional debates over the Citizenship Clause include statements pointing in different directions. Sen. Jacob Howard (R-Mich, 1862-1871) stated that "foreigners," "aliens," and foreign diplomats would be excluded from citizenship (presumably their children, as well). But when asked point-blank if Chinese immigrants in California and "gypsies" would be citizens, another sponsor answered in the affirmative. In 1884 the Supreme Court decided that an Indian born on a reservation in Nebraska was not a citizen (Elk v. Wilkins, 112 U.S. 94, 103 [1884]). But in 1898 the court took the opposite approach and held the child of legal Chinese immigrants was a citizen by virtue of his birth in California (United States v. Wong Kim Ark, 169 U.S. 649, 655 [1898]). This question has not been reviewed by the court since. The Immigration and Nationality Act of 1952 (currently in effect, though amended many times) defines "citizen" as a person born in the U.S. "and subject to the jurisdiction thereof" (U.S.C. 1401[a]), thereby eluding the question rather than clarifying it.

Birthright citizenship has been abandoned by the U.K., France, Australia, New Zealand, Ireland, and India as immigration has increased over the last 30 years. Outside the developing world, it remains the law only in the U.S. and Canada. Rep. Steve King's bill would define "subject to the jurisdiction thereof" to exclude the children of illegal immigrants, thereby ending the incentive for pregnant women to give birth here. It would also declare that the children of most legal immigrants are not citizens, either. Some legal scholars believe Congress cannot make this change by statute because of the Wong Kim Ark decision. I disagree, because that case did not concern the child of an illegal immigrant. It's simply a stretch to say such children fall within the Citizenship Clause as originally drafted or interpreted in that case. And I'm in good company in thinking this is subject to reinterpretation: Judge Richard Posner of the Seventh Circuit of Appeals also believes the idea of birthright citizenship is "nonsense" and could be done away with by Congress (Oforji v. Ashcroft, 354 F.3d 609, 620 [7th Cir. 2003]).

Perhaps the American public disagrees with Congressman King's approach and wants the status quo to continue. I doubt this. Illegal immigration is controversial, and a recent Rasmussen poll shows that 65 percent of likely voters oppose allowing the children of illegal immigrants to obtain birthright citizenship. But the issue should be addressed sensibly and carefully in Congress. There is much at stake regarding the interpretation of the Citizenship Clause, and we would benefit as a nation from knowing what it really means today.