It’s Time to Debate Birthright Citizenship

January 5th, 2012 at 4:04 pm | 53 Comments |

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Rep. Steve King (R-IA) has introduced a bill to repeal “birthright citizenship.” It’s probably the most significant immigration reform bill introduced in Congress since 1965 when nation quotas on immigration were repealed. That revision in the Immigration and Nationality Act (“INA”) significantly changed the racial and ethnic composition of the country and the number of unskilled immigrants.

Whether you believe the change has been good, or not good (my view), we can all agree that such a far-reaching change in the INA should have been the subject of vigorous two-party debate. That did not occur because the Democrats had huge majorities in both houses of Congress, Republicans did not offer a coherent opposition to the bill, and there was residual sympathy for anything originally offered by the recently assassinated JFK.

It’s time for a vigorous national debate about legal immigration without name calling, histrionics, and, unlike 1965, guided by an understanding of the Fourteenth Amendment. Let’s start with the relevant text of that post-civil War Amendment, which everyone agrees, was offered to protect and enfranchise the newly freed black slaves. It states: “All persons born or naturalized in the United States, and subject to the jurisdiction there of, are citizens of the United States…” (emphasis added) (the “Citizenship Clause”). Sen. Jacob Howard (R-MI), introduced the Citizenship Clause to the version of the Amendment which had passed the House in 1866. He stated: This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers… but will include every other class of persons.”

Senators proceeded to debate whether Indians living on reservations would be citizens. Sen. Lyman Trumbill (R-IL), Chairman of the Judiciary Committee, answered that they would not be citizens because of the phrase “and subject to the jurisdiction thereof” of the Citizenship clause. “That means  subject to the complete jurisdiction thereof… not owing allegiance to anybody else.” There was some discussion about whether “gypsies” and legal Chinese immigrants in California would be covered by the Citiizenship Clause. Sen. Howard indicated they would be.

I don’t think there is any way to interpret the original intent of the Citizenship Clause as applying to the children of illegal immigrants. No member of Congress expressed such a view. And my opinion is supported by the second sentence of Sec. 1 of the amendment which expressly provided that the states had to give equal protection of the law to “any person within its jurisdiction,” a broader guaranty than that expressed in the Citizenship Clause. So the Senate was creating two levels of rights for two different classes, citizens and equal protection for everyone including aliens.

The Supreme Court interpreted the Citizenship Clause as requiring “consent” of the U.S. government. So, an Indian wanting to register to vote in Omaha, Nebraska was properly denied the franchise even though he was born in the state. According to the Court, birth was insufficient. Because he was born on an Indian reservation, he needed to become naturalized in order to obtain citizenship. Elk v. Wilkins, 112 U.S. 94, 103 (1884). Thus, the concept of “citizenship” also included sole political allegiance.

However, in 1898 the Supreme Court changed course. In a controversial decision written by Justice Gray, who had written the Elk opinion, the Court held the child of legal Chinese immigrants born in the U.S. was a U.S. citizen. The decision limited the “subject to the jurisdiction thereof” phrase of the Citizenship Clause to foreign diplomats and persons at war with the U.S. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). It must be pointed out that neither Mr. Ark nor his Chinese-born parents were in the country illegally. It must also be noted that there was no statutory change in U.S. immigration law between the Elk and Wong Kim Ark decisions that may have changed the Court’s analysis. The fundamental flaw in the reasoning is that the Supreme Court is supposed to adhere to its prior decisions, a principle known as stare decisis. Supporters of Roe v. Wade like to bring this up whenever a new Supreme Court justice is nominated. Justice Gray should have followed his own analysis from Elk. Instead, he settled on a meaning of the word “jurisdiction” (which has several meanings in the law) from an admiralty case from 1812, 54 years before the 14th Amendment was written. That admiralty case held that a particular vessel was under U.S. jurisdiction by virtue of being in U.S. territorial waters.

Justice Gray also made the incorrect conclusion that the United States had always adhered to the rule of birthright citizenship. But the very first naturalization statute, enacted in 1790, allowed only “free white” people to become citizens. Id.at 654. And the law in effect at the time of the decision allowed birthright citizenship only when the father was a U.S. citizen. Id. at 674. Justice Gray also stated that the American colonies and states adhered to a policy of “birthright citizenship.” Yet his research failed to cite any precedent from any state court agreeing with that view. Id. at 682. Needless to say, there was a vigorous dissent written by Justice Fuller. His most compelling point, and one completely overlooked by the majority, was that under the English common law, there was a distinction between the law of domicile which was decided by where one’s birth and the law of allegiance, based upon nationality. The concept of American citizenship was a hybrid of the two, as expressed inElk. And if this was the correct view of the law then Justice Gray made a tremendous error.

More recently the Supreme Court has held that the equal protection clause of the 14th Amendment applied to the children of illegal immigrants. Plyler v. Doe, 457 U.S. 202 (1982). The 5-4 majority struck down a Texas law that withheld public education funding for the children of illegal immigrants. But the Court did not hold they were citizens.

All of this brings me back to the INA. Does the law provide for birthright citizenship? The answer is ambiguous. 8 U.S.C. 1401(a) simply provides that a person born in the U.S. “and subject to the jurisdiction thereof” is a citizen and national of the U.S. But the INA does not define “subject to the jurisdiction thereof.” Under the Wong Kim Ark interpretation of that phrase, children of illegal immigrants might be citizens, and certainly a lawyer can make a strong argument that they are. But I’ve made the contrary argument here, and it is not frivolous. Certainly, we would benefit from revising that INA to clearly define citizenship. I think Rep. King and his 80 co-sponsors are correct in doing away with birthright citizenship. The only other country having such a rule outside the third world is Canada. The U.K., France, Australia, New Zealand, Ireland, and India have repealed birthright citizenship in the last 30 years as immigration has increased. According to the Rasmussen poll of likely voters, 65% favor repeal. Birthright citizenship is a magnet for illegal immigrants. This costs the taxpayers billions of dollars each year just in paying for illegal immigrant births in hospitals, which as I’ve written here, are barred under another federal law from turning anyone away from their emergency rooms if they want Medicare funding.

It’s time for a robust and civil debate in Congress.

Recent Posts by Howard Foster



53 Comments so far ↓

  • ottovbvs

    “The answer is ambiguous.”

    It’s not in the least ambiguous as any half competent lawyer would tell you. Join the real world Foster. This crackpot bill is going nowhere because it would require a constitutional amendment and everyone apart from you knows it. There are millions probably tens of millions of Americans born to legal and illegal immigrants in this country who are US citizens. Are you seriously proposing to invalidate their legal status because if you say the law is ambiguous that is what you are proposing

    • MSheridan

      I’m not defending Howard’s basic premise, but I don’t think that’s what’s at issue.

      Article I, Section 9; Clause 3 of the Constitution reads “No Bill of Attainder or ex post facto Law shall be passed”. Removing birthright citizenship from those who already have it would be a blatant example of an ex post facto law, so I would assume that Rep. King’s bill would only apply going forward.

    • Greg G.

      According to Judge Richard Posner, there is NO NEED TO AMEND THE CONSTITUTION. In a recent holding on this subject he wrote:

      “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” Posner concluded: “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”

      He also wrote that automatic grants of citizenship by birth is one that “Congress should rethink” and that the United States “should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.”

      If you want the latest and best report on birthright citizenship, see:

      Birthright Citizenship in the United States: A Global Comparison
      http://www.cis.org/birthright-citizenship

  • LFC

    It’s time for a vigorous national debate about legal immigration without name calling, histrionics, …

    Wouldn’t that pretty much render the GOP and the entire right-wing noise machine mute?

    • wileedog

      Heh, he’s actually calling for the party whose one time front-runner was suggesting lethal electrical fences and crocodile filled moats on the border to join in a ‘rigorous’ debate.

  • sweatyb

    Birthright citizenship is something cool about America. I don’t particularly see any reason we should get rid of it. You know what else is a magnet for illegal immigrants? Our incredible wealth. Maybe the Steve King (Racist, Iowa) will introduce legislation to get rid of that too.

    This costs the taxpayers billions of dollars each year just in paying for illegal immigrant births in hospitals, which as I’ve written here, are barred under another federal law from turning anyone away from their emergency rooms if they want Medicare funding.

    What kind of monster would turn away a woman in labor just because she didn’t have the proper documentation? It makes me sad that a person with so little human empathy exists in this world.

  • Lonewolf

    So let me get this straight – his arguments against birthright citizenship are:

    a) A person born in the US might somehow, through an accident of parentage, “not be subject to the jurisdiction” of the US.
    Are they not required to submit themselves to the rule of US law from the moment they exit the birth canal? Does this not demonstrate they are under the state’s jurisdiction? Is he arguing a child born in Philadelphia to, say, illegal Cuban immigrants, is perfectly free to choose to obey only and exclusively Cuban laws and statutes, because they are “not subject to the jurisdiction” of the US, and therefore out of reach of its laws?

    b) The concept of citizenship subscribed to by the slavekeepers of 1790, who basically regarded non-whites as subhuman, and females as chattels, are sufficiently broad and wise to remain unchanged in 21st century America? That the nation’s morals and views about what constitutes humanity and what does not, and whether people may be considered property or not, and whether citizenship should be granted to “subhumans” and “property”, hasn’t progressed in three and a half centuries?

    If these are his strongest arguments, the only conclusion one can possibly draw is that the author is not really interested in citizenship reform, nor in rational discussion. He has merely been infected by the racially-motivated xenophobia that has become the hallmark of the Republican party, and he needs to publicly lance the boil of his swelling cultural paranoia before it overwhelms him.

  • jg bennet

    Hmmm he is talking changing the 14th amendment which will make “the immortals”/GOP friends/the corporations very angry.

    The corporation as a person is a corrupt evolution via the 14th amendment which corporations used to become people. ……..

    Morton Mintz pointed out in the National Law Journal in an 1888 case that ignored the fact that “the only ‘person’ Congress had in mind when it adopted the 14th Amendment in 1866 was the newly freed slave.”

    Justice Black observed in the 1930s that in the first fifty years following the adoption of the 14th Amendment, “less than one-half of 1 percent of Supreme Court cases invoked it in protection of the N*gro race, and more than 50 percent asked that its benefits be extended to corporations.”

    I guess if he took the position that there are no more slaves therefore there should be no 14th amendment then he might have a great case. Otherwise good luck to King defending himself from the corporate super pacs.

    Corporate personhood is the status conferred upon corporations under the law, which allows corporations to have rights and responsibilities similar to those of a natural person.

    ****The notion of corporations as persons: As a matter of interpretation of the word “person” in the Fourteenth Amendment, U.S. courts have extended certain constitutional protections to corporations.
    http://en.wikipedia.org/wiki/Corporate_personhood

    • MSheridan

      Verrrry nice catch there.

      • jg bennet

        Thanks :)

        If they repeal the 14th they will kill Citizens United so the big corporate pacs will switch sides to the Dems on that one.

        I would love to see the debate because I think it is a bad & outdated law but the corporations will hate it………

        While society was grappling with bringing former slaves into U.S society, the power and influence of corporations was also on the rise. While very few people were turning their attention and energy to bringing former slaves into society – indeed, far more energy was being put into NOT bringing them into society – corporations were using a great deal of their wealth to hire lawyers to advance their interests in the courts. The Fourteenth Amendment offered an opportunity to advance corporate interests, and the corporate attorneys set out to exploit it.

        Of the 150 cases involving the Fourteenth Amendment heard by the Supreme Court up to the Plessy v. Ferguson case in 1896 that established the legal standing of “separate but equal,” 15 involved blacks and 135 involved business entities.

        The scope of the Fourteenth Amendment to secure the political rights of former slaves was so restricted by the Supreme Court that blacks won only one case. The expansive view of the Fourteenth Amendment that comes down to Constitutional Law classes today is the result of corporations using the Fourteenth Amendment as a shield against regulation.

        Below is the article the above clip is from. It is verrry interesting.

        http://reclaimdemocracy.org/personhood/fourteenth_amendment_hammerstrom.pdf

        • LauraNo

          Thanks for this. Some commenters hear should have the platform that some of the bloggers here shouldn’t. :) )

  • Dex

    Please, by all means, Republicans, you go around “debating” birthright citizenship.

    And then Texas turns blue and you will never see the inside of the White House again.

  • Nanotek

    “It’s Time to Debate Birthright Citizenship”

    no, it’s not. it’s time to start getting jobs, jobs and jobs front and center — like Republicans falsely campaigned on in 2010 — start focusing on restoring the American working class… plenty of time for immigration bigotry later

    UPDATE

    Just changed my mind… I now agree with Dex.

  • indy

    According to the Court, birth was insufficient. Because he was born on an Indian reservation, he needed to become naturalized in order to obtain citizenship. Elk v. Wilkins, 112 U.S. 94, 103 (1884). Thus, the concept of “citizenship” also included sole political allegiance.

    This is a gross and largely misleading simplification of the case. The issue at hand was essentially that since the government had dealt with Indians via Treaty and Acts, were their lands truly subject to the jurisdiction of the United States within the meaning of the 14th amendment?

    That’s a pretty reasonable question to consider and ‘no’ is a pretty reasonable answer. Hence the requirement for the Snyder act but it is completely different circumstances than United States v. Wong Kim Ark. There is no conflict in these two rulings unless the child was born in a geopolitical area not truly subject to United States jurisdiction as were the Indian lands.

    • Giggles

      The difficulties of this citizenship thing is still sadly alive. Imagine having to ask Hillary every time you wanted to see the Greece/Euro crisis first hand (that’s you Newt).

      http://www.bbc.co.uk/news/world-us+canada-10634044

      I am still sicken that the State of Massachusetts is named for a Native American word and has a Native American on its flag and yet it only two small populations of First Peoples left to share in the Thanksgiving.

  • think4yourself

    I don’t mind having a conversation about birthright citizenship but don’t see that Foster brings compelling arguments to the table. He sites weak precedent, and he has noted (and others here) there is precedent for other side as well.

    Should non-US Citizens who have a child within US borders mean that child is automatically a citizen of this country? There was a time in our history where that made sense (we had vast acres of land to fill before other nations did). Not sure it make’s sense today. I don’t personally buy the rhetoric that millions of devious, illegals cross our border for the sole reason of getting knocked up and having an anchor baby. But I don’t mind examing if we need automatic citizenship any longer.

    However, if we did change the law, I certainly would not strip existing citizen’s of their status.

    • indy

      However, if we did change the law…

      The ruling in Ark essentially means that congress can’t use law to limit the meaning of the amendment. Nothing short of another amendment will do unless you can get the supreme court to reverse that ruling. [Hence all of the time Foster takes in arguing that that ruling was in error.]

    • Primrose

      “This costs the taxpayers billions of dollars each year just in paying for illegal immigrant births in hospitals, which as I’ve written here, are barred under another federal law from turning anyone away from their emergency rooms if they want Medicare funding.”

      This last paragraph caught my eye upon re-read. Since the illegal immigrants are here before birth, what is Mr. Foster suggesting that we turn people away from emergency rooms who do not have proof of citizenship?

      Where do you think these women will give birth? Or is he under the impression that giving birth is something you can schedule and put on hold? The law will save no money.

      • LauraNo

        I know. He just made up a dollar amount as a fact, any amount he wanted that sounded good to his gut. Backwards ‘B” did the same thing for another bigot, once.

  • Claude

    There is no good reason to place much importance on where a person is born. It’s outdated. In the 18th and 19th centuries, when travel was slow and dangerous, pregnant women and young children for the most part didn’t travel anywhere. So the fact you were born in a place meant that your family had been there for at least several months and would be there for at least a few years more. With modern transportation, people often have little attachment to their birthplace.

    Eliminate birthright citizenship and also the requirement that a President be a natural born citizen.

    • sweatyb

      Eliminate free citizenship altogether! Why should someone get all the benefits of the Constitution and Bill of Rights just because their parents did? Everyone who wants to be a citizen should have to pay a hefty fee. That will keep the riff-raff out!

      • Primrose

        This is exactly the trend of such an argument that is so nonsensical. So we don’t have birthright citizen. Who gets to be a citizen then? If half my parents are illegal am I still a citizen? And what do we do with millions of people born and raised in the united states, owing allegiance to no other country? Deport them? Where?

        The fact that he begins this discussion not with the 14th amendment but the lifting or racial and ethnic quotas shows exactly what this entire question is about.

        Birthright citizenship is exactly not an ambiguous idea. It has a clear delineation and people understand it. Nor is there any pressing need to change it. We are not getting tons of citizens who owe no allegiance to this country, which would be one of the few compelling reason to change it.

        But I am with Dex. Sure let’s debate it. In this nation of immigrants. What a lovely Briar Patch, this democrat thinks.

  • pnwguy

    For all the concern about “anchor babies”, I don’t believe there is any constitutional requirement that a child born in the US has to be given instant rights of occupancy as a minor. If the parents aren’t citizens and not entitled to live in the US, the child could exercise his right either through emancipation (a relative could raise them or surrender to adoption) or returning to the US as an adult. Effectively that would neutralize most of the concern about birthright citizenship, without changing the constitution.

    Is that not the case with other nations that honor “jus soli”?

    To take another constitutional analogy, though I have a 2nd amendment right to own a gun, that doesn’t mean the government must give me one. So if I’m born a US citizen, it doesn’t mean the government must give me US citizen (or naturalized) parents.

  • jg bennet

    The whole thing is a political argument not an economic one and that should clearly & honestly be pointed out to party loyalists on both sides..

    From October 2003
    Given the large number of immigrants allowed into the country and their concentration in a handful of states, it is inevitable that immigration will exact a political cost from those states that receive relatively FEW immigrants.

    Because family relationships and existing cultural ties determine where immigrants live, movement into new areas will take many decades. Thus, immigrants will continue to be concentrated in only a few states, and this in turn will continue to shift political power in the House of Representatives and the Electoral College.

    It should be added that the estimates significantly understate the effects of immigration overall because they do not include estimates for the effect U.S.-born children of immigrants have on the distribution of House seats.

    ***If such estimates were included, the impact of immigration would be even greater.***

    It is important, then, when making decisions regarding immigration policy, to take into account not only the economic, fiscal, cultural, and demographic impacts of immigration, but also the political impact.
    http://www.cis.org/ImmigrationEffectCongressionalApportionment

    19 December 2010
    Iowa will lose a seat in U.S. House, Texas gained four House seats.

  • jdd_stl1

    “It’s time for a robust and civil debate in Congress.”

    That gave me a good chuckle.
    Maybe 2012 will go down as “The Year of Robust and Civil Debates in Congress.”

  • TJ Parker

    What an idiot.

  • jakester

    Great, I am all against illegals or even legit tourists dropping their frogs here then getting automatic citizenship. It would be good to change that stupid law. Then we could give out all the guest agricultural worker visas, let them in and work safely and legally, but then pull the plug on them when work is over. If you squeeze one out, take him home too!

    • ConnerMcMaub

      It would take a minimum of 31 years to be able to use an “anchor baby” to even apply for his parents to get citizenship. 31 years before you can start the process which at best takes a few years. “Anchor babies” are the epitome of a made up issue that appeals to the angry white male.

  • rbottoms

    It’s time to kill the GOP among Hispanics for good.

    Fixed.

  • Hunter1

    “It’s time for a robust and civil debate in Congress.”

    The debate should be deferred for another generation. When the majority of one party, Republicans, are infected with a heavy innoculum of xenophobia, any legislation produced with want for foresight and decency.

  • Primrose

    You know one of the weaknesses of this article is that it does not offer an alternative definition of citizenship. I presume Mr. Foster does not want to stick to only white, property-owning males (though he seems curiously unclear on the 14th amendment’s protection to African-Americans). I presume he doesn’t want citizenship of the father (unless he could get it made retroactive and throw out Mr. Obama).

    So what is his answer? Who gets to be a citizen in your world, Mr. Foster? Until you actually have an proposition, then no I don’t think a debate is useful.

  • TJ Parker

    It’s probably the most significant immigration reform bill introduced in Congress since 1965 …

    if you redefine “significant” to “mean-spirited bit of grandstanding that has no chance of going anywhere”.

    • LauraNo

      As if taking away a long-standing, well accepted and widely understood right can be called ‘reform’.

  • Nanotek

    First, the conservatives came for “the gays”

    Then they came for the “anchor babies”…

    doesn’t FF get it?

  • Graychin

    Know any good lawyer jokes?

    Was the Mexican national that was executed by Texas “under the jurisdiction thereof”?

    Let’s cut through the crap. The only long-term future for the 90% white Republican Party is to prevent as many non-whites from voting as possible. “Voter ID,” cutback of early voting hours, and other such measures pushed by the odious Hans Van Spakovsky have the sole purpose of suppressing the minority vote, since there is no evidence whatsoever of any significant voting fraud at retail.

    Sad, isn’t it?

  • HighCountry

    Yes, a “debate” would be a great idea. Unfortunately, actual “debate” is virtually nonexistent in this political climate.

  • lilmanny

    “Under the jurisdiction there of”.

    Given that there are several meanings under the law of “jurisdiction”, I would think even a half-wit attorney could define an illegal immigrant, or their child, as “under the jurisdiction there of”. I think that issue is probably decided in traffic and civil court every day. Am I wrong in thinking this? I might not agree with it, but I’m not going to pretend the law isn’t clear.

  • bdtex

    Just in time for the election. I remember how well the immigration bill passed by the GOP House in late 2005 worked for them in the 2006 election. The Senate passed an immigration bill in 2006 and Speaker Hastert refused to send the House bill to a conference committee with the Senate bill. Sure hope Speaker Boehner lets King’s bill come up for a vote in the House. Ya think Tea Party House Freshmen want a debate “…without name calling,histrionics…”?

  • PingGuy

    Why am I reading an article, at FrumForum, which supports the antics of Steve King? The only articles worth reading around here anymore seem to be David’s. I hope that changes.

  • LauraNo

    “Birthright citizenship is a magnet for illegal immigrants. This costs the taxpayers billions of dollars each year just in paying for illegal immigrant births in hospitals,…”

    Prove it.

    “… which as I’ve written here, are barred under another federal law from turning anyone away from their emergency rooms if they want Medicare funding”.

    Horrors! The fed govt going all caring and responsible again just makes a person sick. By the way, if you think that after you advocate rewriting the Constitution in order to practice your bigotry there will be no ‘name-calling’ if you just call for no name-calling is fairly ridiculous. Bigots need to be called out as bigots and if you don’t like it, well…

  • aztecmother

    Every Person is “subject to the jurisdiction thereof” of the United States regardless of status (legal or illegal):

    In the 1970’s Texas passed a law denying public education to illegal alien children. They reasoned that since they were illegal they were not subject to the jurisdiction thereof of Texas and thus were not protected under the Equal Protection Clause of the 14th.

    Plyler v. Doe

    Texas View:
    Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law.

    SCOTUS:
    We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.

    Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State’s civil and criminal laws. And until he leaves the jurisdiction — either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States — he is entitled to the equal protection of the laws that a State may choose to establish.

    They go on to say that illegal’s are an underclass in the United States.
    The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply [p220] with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Trimble v. Gordon, 430 U.S. 762, 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.
    [V]isiting . . . condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the . . . child is an ineffectual — as well as unjust — way of deterring the parent.

  • Houndentenor

    This is a big steaming pile of crap.

    We have illegal immigration because we have people who hire illegal workers knowing they are not going to be prosecuted for doing so. Fix that and most of the illegals will stop coming.

    This is a red herring. Everyone knows we aren’t going to repeal this provision of the 14th Amendment. Meanwhile people who love exploiting the cheap illegal labor can pretend they are opposed to illegal immigration when they really aren’t. It’s a lie. Anyone playing these political games should be be called out for the BS this is.

  • Delmar Jackson

    It’s Time to Debate Birthright Citizenship

    Amen brother! Amen!

    I sense that those individuals and groups that benefit from massive immigration to our nation will be furious for anyone daring to even mention a desire to debate the wisdom of anchor babies.

    Folks, immigration is a racket, the biggest racket in town. The only ones that favor immigration are those that benefit from it and pass all the economic,social and environmental costs onto the communities.

    Our democratic friends want more immigration and anchor babies for the electoral advantage, our Republican frinds want it for the cheap compliant labor. The group that will squeel the loudest at any upset of the status quo are those that wear a giant moral crown and get high off of of feeling righteous and superior over the people in flyover country . These moral giants among us have much more feelings for ” the other” than we do, and choose to ignore the poor and needy living among us here now for the poor living in other countries they feel the need to bring here who will depress the wages and job opportunities of the porest here now.

    I am not smart enough to tell you with conviction and certainty what the founders wanted when they wrote the constitution regarding anchor babies.

    I do know this, immigration should benefit a nation, not burden it, and allowing hundreds of thousands of babies born each year to illegal immigrants automatically become citizens, is absurd. The majority in this country and all other western countries think so.

    It is time for the debate. It is time for the anchor babies to go home with their parents. It is time for our nation to become a nation of laws and citizens again, not a nation fast becoming just a crowd.

  • weiwentg

    My impression is that the courts have ruled consistently that undocumented immigrants are indeed under the legal jurisdiction of the U.S. – foreign embassy personnel aren’t, as they’re under the jurisdiction of their home countries, but all non-citizens present on U.S. soil are. The author seems to imply that there’s some legal basis for a constitutional challenge – I’m not up on the laws here but good luck with that.

    The author is correct to observe that we’re alone among OECD countries in using jus soli alone with no exceptions. I strongly disagree that birthright citizenship is a magnet for undocumented aliens – I think that jobs are the main magnet.

    If conservatives were serious about changing birthright citizenship, they’ll need to create a viable guest worker program that has a path to permanent residence and citizenship. Our guest worker program for low-skilled migrant workers is a joke. The one for high skilled workers both doesn’t work too well and offers a very uncertain path to permanent residency. And they’ll have to get the states to vote to change the Constitution. I could certainly live with comprehensive immigration reform in exchange for changing jus soli, but good luck getting it done.

  • jskdn

    There is not a very civil debate here. I think that the constitutional question ought to follow the question of what policy the citizens of this country want regarding children born to illegal immigrants. If citizens want to change the current practice, then what is necessary to do that becomes the question.

    • Houndentenor

      Such a change would require amending the constitution. If someone thinks that’s a good idea then they should propose that constitutional amendment and we can debate that and it will pass or fail.

      • jskdn

        A lot of people already think it would be good to change the status quo. Why not debate it?

        For those who want to debate the need for an amendment, the Congressional Research Service produced this report.

        “Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents”

        http://www.fas.org/sgp/crs/misc/RL33079.pdf

  • LaLupa

    Another disgusting post from Mr. Foster whose paranoia about people who do not share his ethnic background has reached pathetic proportions.

    Bottom line: If you are at war with the 14th Amendment, you should not be in the Republican Party.

  • LaLupa

    All this talk about revisiting birthright citizenship is based on falsehoods. Outfits like FAIR, CIS and NumbersUSA have put out the notion that illegal immigrats come across the border. Have a child and boom everybody gets instant citizenship and welfare checks.

    The reality is that a child has to be 21 years old before he or she can sponsor his parent for a green card. Moreover, the parent has to show LEGAL entry or he or she is not eligible for sponsorship.

    As previously stated, the kind of garbage being put out by Mr. Foster disgusts me. The sooner the GOP drop this nativist bull, the better off the party will be. I say this as a Republican involved in local grassroots. Long live Lincoln. Let’s get the Dixiecrats out!

  • Biped

    All Republicans running for office should loudly proclaim themselves opposed to birthright citizenship.

  • aulonn

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