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Law & the Courts

Not Hard to Read 14th Amendment As Not Requiring Birthright Citizenship — and Nothing Odd About Supporting Such a Reading

In response to The Mandela memorial was not the first time the Danish prime minister and President Obama had met. Pictured, the two talk during her visit to the White House in February, 2012.

Roger, with due respect,

1. It does not seem hard at all to read the text of the Constitution as not requiring birthright citizenship unless one is construing the word “jurisdiction” to mean something plainly different from what the term meant when the Fourteenth Amendment was adopted.

As the Lino Graglia law review article Rich excerpted demonstrates, the term meant being subject to jurisdiction in the sense of the complete allegiance inherent in citizenship, not in the sense of merely being subject to American laws. Regarding the latter, every person present in the United States – citizen or not, legally present or not – is subject to the jurisdiction of the United States in the narrow sense of being expected to follow our laws. (Even diplomats, though they have an immunity defense against prosecution for criminal law violations, are expected to follow our laws and subject to expulsion for failing to do so.)

Yet, every person present in the United States is not presumed to have fealty to the United States, which is what “jurisdiction” means in the Fourteenth Amendment. And it is clearly not the case that every person born in the United States is automatically a citizen pursuant to the Fourteenth Amendment: U.S.-born children of foreign diplomats are not; nor are the U.S.-born children of American Indians (they were granted citizenship by an act of Congress in 1924). Given that it is not true that every person born in the United States is an American citizen under the Constitution, how difficult can it be to read the Constitution to not require something it does not require?

2. I don’t know that it’s necessary to “make war” on birthright citizenship, but there is nothing odd about opposition to it. In fact, the United States is one of the few countries in the world that confers citizenship on illegal aliens based on nothing other than the happenstance of their birth within national borders. I am not suggesting that the laws of other countries shed light on the meaning of the Fourteenth Amendment; just that birthright citizenship is rightly seen as bad policy in most of the world. (Somehow, I suspect that the Supreme Court’s progressives, who believe in consulting foreign law when “interpreting” the U.S. Constitution, would resist that impulse when it comes to birthright citizenship.)

There are many people who believe in robust legal immigration and are open to the notion of some qualified amnesty for some categories of illegal aliens but who nevertheless think it is a terrible idea to grant citizenship automatically to the U.S.-born children of illegal aliens – a policy that can only encourage more illegal immigration. I am not a fan of “comprehensive immigration reform”; but if reform is to be comprehensive, and we are trying to discourage illegal immigration, why would we not address every policy that incentivizes illegal immigration?

If denying birthright citizenship seems like an offensive proposition to some, it can only be because we’ve lost our sense of what citizenship should be – the concept of national allegiance inherent in it. If a couple who are nationals of Egypt enter our country and have a baby while they are here, why is it sensible to presume that child’s allegiance is to the United States rather than Egypt? If the baby of an American couple happened to be born while they were touring Egypt, would we not presume that the child’s allegiance was to the United States?

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