Birthright Citizenship

Tell me, are you a Roman?

The relevant language is straightforward yet without question one of the most confusing worded aspects: “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.”

It is important to understand that even then, during the thirty fourth Congress, that errors in the wording created chaos, nothing like what was found when the original founding fathers wrote the complete Constitution, Bill of Rights, and the Federalist and Anti-Federalists Papers.

From a historical perspective, the amendment only codified the English common law practiced by the federal government since the inception of the republic: defining citizenship on the basis of birthplace (jus solis) as opposed to citizenship of the parents (jus sanguinis).

This qualification in and of itself is not a true and correct record of English common law; that understanding could only be understood by one reading “The Rights of Englishmen” whilst having its basic premise from the “Magna Charta.”

This is “birthright citizenship.”

The drafters of the amendment, in order to address concerns about the children of diplomats and enemy soldiers who might be on U.S. territory (neither group being subject to U.S. law), as well as American Indians who were still considered semi-sovereigns who governed themselves, inserted the qualifier phrase “and subject to the jurisdiction thereof”.

In 1898 the Supreme Court in United States vs. Wong Kim Ark, utilizing a strict constructionist reading of the amendment, declared that “subject to the jurisdiction” meant “subject to the laws of the United States”, rather than “subject to the political jurisdiction of the United States”.

The Court chose jus solis over jus sanguinis: If one is born on American soil, then the birth parent(s) is subject to the laws of the United States and the child is, therefore, an American citizen. Not quite! One must consider the Citizenship Act of 2011.

Parental citizenship or allegiance (unless a member of one of the excepted three classes) is not determinative of citizenship.

Now, however, there is an effort to undermine this very basic tenet of American citizenship law in order to address failed leadership on immigration policy. This failure, however, has everything to do with one side’s refusal to give up cheap labor and the other’s refusal to give up a voting bloc but nothing to do with the natural born new citizen.

They would, in effect, make parental citizenship a qualifier for U.S. citizenship, a notion completely foreign in the 226 year history of the republic.

Controlling immigration begins with enforcing the laws on the books and, where warranted, amending the Immigration and Naturalization Act and entitlement programs. Stripping away a constitutional right to citizenship, however, is like a tattoo: it is a permanent response to a temporary feeling.

Depriving natural born Americans of their constitutionally guaranteed citizenship is as shameful a suggestion as was the internment of Japanese Americans in World War II.

This attempt to dim the light of our “shining city on a hill” should be rejected by all who hold the Constitution inviolate and believe in the promise that is America.

A second CRS legislative attorney, Margaret Mikyung Lee, looked specifically at birthright citizenship in 2010 and drew similar conclusions about the history of birthright citizenship laws. But Lee said that some arguments were being made that the Wong Kim Ark court and the 14th Amendment’s drafters didn’t consider the concept of illegal immigrants, because that wasn’t a requirement to do it at the time.