2010.09.09

References on Birthright Citizenship

2010 September 09
Last revision:  2011 Jan 08.  Click on History for changes and updates.

    For many reasons, and perhaps primarily because of the new Arizona immigration law, immigration has become a major part of political debate.  Obviously, there are many facets to immigration.  This post considers only the birthright citizenship aspect. 

    Any sovereign nation must have the authority to control its borders and immigration, and do so.  The public policy should be based on the national interest and therefore is the responsibility of Congress. 

    Most Americans including this writer favor legal immigration.  But it must be established by the legislature and enforced by the executive branch. 

    The continuation of this post provides many references concerning birthright citizenship.  Separate posts may deal with the public policy issues. 

Don Nordeen
============
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  • Key Words:  birthright citizenship, immigration, constitution, public policy

References on Birthright Citizenship (continued)

Introduction

    Birthright citizenship is only one aspect of the immigration issues.  There is a long history and the considerations and laws have changed as new conditions arise.  

    A summary of the immigration issues is contained in an article in the Washington Post by Alberto Gonzales, former attorney general of the U.S., "Changing the 14th Amendment won't solve our immigration crisis", Sunday, August 22, 2010.  While he opposes changing the 14th Amendment, his article provides a summary of the immigration issues.  Key quotations on the immigration issues include:

    "Today, however, there is virtually universal agreement that our immigration process is broken. While security on our southern border has improved in the past decade, it remains inadequate in a post-9/11 world. Many employers hire undocumented workers with little concern about prosecution. Thousands of people cross our borders illegally believing they will not be arrested, expecting instead to receive benefits and, eventually, amnesty."
    "Obama administration officials went to court recently to stop Arizona from enforcing federal immigration laws through a newly enacted state law, arguing that the Constitution gives them sole authority in this arena. How the courts will ultimately decide this question is unclear, but with the federal government's claim of authority comes responsibility -- and so far, our national leaders have failed us
    "Based on what I have observed, most illegal immigrants come to America to provide for their families, and by most accounts, they contribute to our economy. Nevertheless, we are a nation of laws. When people break the law with impunity, it encourages further disobedience and breeds further disrespect for the rule of law."
    "Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis. People will certainly continue to cross our borders to find a better life, irrespective of the possibilities of U.S. citizenship."

Implicitly, Mr. Gonzales' article indicates the benefits of legal immigration. 

    Jonathon Turley's article in USA Today, Who is a citizen? The Founders left us a riddle. by Jonathon Turley, provides a discussion of the Constitutional issues involved in layman's terms.  He concludes that citizenship is poorly defined. 

 

References on Birthright Citizenship

    The references below are all available on the internet.  Brief summaries are provided where available. 

  • constitution "birthright citizenship" - Google Search — This is the search string used in developing this list of references. 
  • constitution "birthright citizenship" "and subject to the jurisdiction thereof" - Google Search — Alternate search string that is more focused. 
  • 14th Amendment: Is birthright citizenship really in the Constitution? By Peter Grier , Christian Science Monitor, Wed 2010 Aug 11 — Congress could deny birthright citizenship to the children of illegal immigrants, say some experts. But others believe that changing citizenship policy requires changing the 14th Amendment.  This article is written for a general reading audience.  Key points and opposing views described are:
    • "Section 1 of the 14th Amendment begins this way: “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.”  (underline emphasis added)
    • "The key phrase here is “subject to the jurisdiction thereof,” say some experts."
    • "Illegal immigrants are not subject to US jurisdiction, in the sense that they cannot be drafted into the US military or tried for treason against the US, said John Eastman, a professor at the Chapman University School of Law, in a media conference call Monday. Their children would share that status, via citizenship in their parents’ nation or nations of birth – and so would not be eligible for a US passport, even if born on US soil, according to Dr. Eastman."
    • ""Those who want to read it narrowly ... are simply wrong," said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, in a recent conference call."
  • Jus soli - Wikipedia, the free encyclopedia (Specific National Legislation) — Jus soli is observed in 16% of the world, the United States being the largest practitioner.  Of the developed nations, only Canada and the United States provide jus soli. 
  • Jus soli - Wikipedia, the free encyclopedia (Modification of Jus soli) — Jus soli has been modified in the following countries:  United Kingdom, Australia, Republic of Ireland, New Zealand, South Africa, France and Germany. 
  • The 14th Amendment to the United States Constitution — This website has the following links:  Home, The amendment, Original intent, Misinterpreted!, Apportionment, Consequences, Reading list, Videos, News articles, and What can be done.
    • "This website serves to explain the original intent of the Fourteenth (14th) Amendment to the US Constitution, and how it is currently misinterpreted to give citizenship to children born in the United States of illegal alien parents. These children, via their birthright citizenship, act as anchor babies and can, upon reaching the age of majority, facilitate bringing their extended family into the US in order to obtain citizenship. Although some experts believe that a Constitutional amendment would be necessary to remedy the misinterpretation, many believe that Congressional action would be sufficient and is urgently warranted." 
    • Fourteenth Amendment - anchor babies and birthright citizenship - interpretations and misinterpretations - US Constitution, apportionment, slavery slaves citizenship vote
  • Amicus Briefs submitted to the U.S. Supreme Court.  These lay out the legal arguments concerning birthright citizenship.  The two briefs below appear to be the most significant.  See Google Search for additional references which uses the search string ["amicus brief" hamdi "Supreme Court of the United States" birthright].
    •  [PDF]Hamdi v. Rumsfeld - Supreme Court of the United States — Supreme Court of the United States.  BRIEF OF AMICUS CURIAE EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND IN SUPPORT OF RESPONDENTS.  ... Birth in the territory of the United States has never been an absolute entitlement to citizenship. The Fourteenth Amendment does not extend to children born to alien parents at war with the United States, nor to the children of diplomatic agents, American Indians, or illegal aliens. Its Citizenship Clause extends to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” U.S. Const. Amend. XIV (emphasis added). It is not the physical location of birth that defines citizenship, but the express or implied consent to jurisdiction of the sovereign. That consent is lacking in many important situations, perhaps including the one here, and the foregoing exclusions must be preserved in the disposition of this case.  ...  http://www.eagleforum.org/briefs/HAMDI.pdf
    • [PDF]Hamdi Merits Brief Final — In The Supreme Court of the United States. Hamdi v. Rumsfeld.  Brief of Amicus Curiae The Claremont Institute Center for Constitutional Jurisprudence In Support of Respondents.  ...The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” 14 Stat. 27, ch. 31 (April 9, 1866). As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided by the 1866 Act. ... http://www.claremont.org/repository/doclib/hamdimeritsbrieffinal.pdf
  • John Eastman — Dr. John Eastman, Dean of Chapman University School of Law
    • Laura Ingram 'The O'Reilly Factor' with John Eastman — July 29, 2010, VIDEO: Laura hosts 'The O'Reilly Factor' Wednesday.  In the first video, Laura discusses Judge Susan Bolton's blocking of the Arizona immigration law.
    • You Tube - The Challenge Facing America — This five-minute video summarizes the meaning of the phrase "subject to the jurisdiction thereof" and birthright citizenship. 
    • YouTube - Dr. John Eastman part 1: 14th Amendment and Birthright Citizenship — Part 1 of a two-part interview with Dr. John Eastman, Dean of Chapman University School of Law, on October 30, 2007.  Part II is linked at the end of Part I. 
    • Toward a More Perfect Definition of 'Citizen' — Posted on February 15, 2006.  John Eastman's testimony on birthright citizenship last fall before the House Judiciary Committee's Immigration Subcommittee, and the resulting legislative proposals, are featured in an article in Congressional Quarterly.
          Eastman has zeroed in on what the 1866 Civil Rights Act -- a statutory forerunner of the 14th Amendment, which was added to the Constitution two years later-- said about citizenship. Drafted to guarantee citizenship to recently freed slaves, the law was more direct in who was eligible: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." The 14th Amendment employed the more ambiguous clause "subject to the jurisdiction thereof," instead of "not subject to any foreign power."
    • "John Eastman" immigration video - Google Search — Use for a search of other Eastman videos on immigration.  
  • Birthright Citizenship and the Constitution by Christopher L. Eisgrube.  New York University Law Review, April, 1997, 2 N.Y.U.L. Rev. 54 (presented for educational purposes).  Copyright (c) 1997 New York University Law Review — This is a comprehensive discussion of the constitutional aspects including reviews of analyses by other authors.  110 references. 
"The Citizenship Clause of the Fourteenth Amendment provides, "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." The Clause poses one interpretive puzzle about the qualifications for citizenship: what is the meaning of the Clause's jurisdictional proviso, which limits citizenship to persons who are "subject to the jurisdiction" of the United States? As Professors Schuck and Smith observe, "Without that phrase, the clause would appear to demand a universal application, for it speaks of all persons, not some, and it employs a geographical referent (birth "in the United States") rather than a legal one.""
  • Hillsdale College - Birthright Citizenship and Dual Citizenship by Edward J. Erler, Professor of Political Science, California State University, San Bernardino —
    • Birthright citizenship is "the policy whereby the children of illegal aliens born within the geographical limits of the United States are entitled to American citizenship—is a great magnet for illegal immigration. Many believe that this policy is an explicit command of the Constitution, consistent with the British common law system. But this is simply not true."
    • "An 1898 decision, U.S. v. Wong Kim Ark, held by a vote of 5-4 that a child of legal resident aliens is entitled to birthright citizenship. The Wong Kim Ark decision, however, was based on the mistaken premise that the Fourteenth Amendment adopted the common law system of birthright citizenship."
    • "The constitutional grounds for the majority opinion in Wong Kim Ark are tendentious and it could easily be overturned. This would, of course, require a proper understanding of the foundations of American citizenship, and whether the current Supreme Court is capable of such is open to conjecture. But in any case, to say that children of legal aliens are entitled to citizenship is one thing; after all, their parents are in the country with the permission of the U.S. It is entirely different with illegal aliens, who are here without permission. Thus repeal of the current policy of birthright citizenship for the children of illegal aliens would not require a constitutional amendment."
  • Birthright Citizenship and the Constitution | The Heritage Foundation Published on December 1, 2005 by Edward Erler — Edward Erler is Professor of Political Science at California State University, San Bernadino.  The following is an entry concerning the first section of Amendment 14 of the Constitution as found in The Heritage Guide to the Constitution.
    • "Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves." 
    • "Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States."" 
    • "Based on the intent of the framers of the Fourteenth Amendment, some believe that Congress could exercise its Section 5 powers to prevent the children of illegal aliens from automatically becoming citizens of the United States. An effort in 1997 failed in the face of intense political opposition from immigrant rights groups. Apparently, the question remains open to the determination of the political and legal processes."
  • Lino A. Graglia, "Birthright Citizenship for Children of Illegal Aliens: an Irrational Public Policy" Texas Review of Law & Politics, v14, pp. 1-14, Fall 2009 -- 14 Tex. Rev. Law & Pol. 1 — Lino A. Graglia is the A. Dalton Cross Professor of Law, University of Texas School of Law.  The Conclusion states:
    • There have been several proposals in Congress in recent years to end birthright citizenship for children of illegal aliens by statute or constitutional amendment, but none has ever come out of the House Judiciary Committee. Such a statute would probably be challenged as unconstitutional—as are most similar statutes—and the result may depend, as is usual today in controversial cases, on how Justice Anthony Kennedy votes, which is hard to predict.
      __Constitutional restrictions on policy choices should not be favored in a democratic society. New restrictions should not be created and existing ones should not be expanded. It should not be controversial to assert—although, unfortunately, it is— that a policy choice by elected representatives should not be disallowed by judges as unconstitutional unless it clearly is— “clearly” because in a democracy the view of elected legislators should prevail over the view of judges in cases of doubt. By that test, a law ending birthright citizenship for a child of an illegal alien would easily survive. Indeed, its survival should require no more than recognition by the Supreme Court that the Constitution should not be interpreted to require an absurdity.
  • Birthright Citizenship: A Constitutional Guarantee by Elizabeth Wydra, American Constitution Society, 2009 May 05.

    Ms. Wydra maintains that these efforts are directly contrary to the express text of the Fourteenth Amendment as well as its history and animating principles. Ms. Wydra explains that the “powerfully plain language” of the Citizenship Clause of the Fourteenth Amendment “embodies the jus soli rule of citizenship, under which citizenship is acquired” though place of birth. Moreover, Ms. Wydra notes, the legislative debates surrounding the Citizenship Clause show “that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil. . . . Whether the members of the Reconstruction Congress understood the Citizenship Clause to be a welcomed turn toward equality—and voted for it—or a worrisome invitation to foreign migrants—and voted against it—both sides agreed on the enacted Clause’s meaning.” The proponents of the Amendment choose to constitutionalize the issue of birthright citizenship to overrule the Dred Scott decision and “to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day,” argues Ms. Wydra. She then addresses modern arguments that the Fourteenth Amendment does not provide for birthright citizenship but instead citizenship based on the “allegiance” of one’s parents or “consent.” According to Ms. Wydra, while the Reconstruction Framers could have inserted language that would have conditioned citizenship in those ways, they “were not poor wordsmiths and they chose to do none of those things. Instead, they devised a rule that is elegantly simple and intentionally fixed.”"

    "ACS is pleased to distribute an issue brief by Elizabeth Wydra, Chief Counsel at the Constitutional Accountability Center, entitled Birthright Citizenship: A Constitutional Guarantee. Ms. Wydra explains that, “Since its ratification in 1868, the Fourteenth Amendment has guaranteed that “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.” Notwithstanding this Amendment, Ms. Wydra observes “opponents of birthright citizenship continue to fight this constitutional guarantee” in myriad ways.
  • (added 2011 Jan 09) Birthright Citizenship in the United States: A Global Comparison  (Center for Immigration Studies), August 2010 — "The Center for Immigration Studies is an independent, non-partisan, non-profit, research organization.  Since our founding in 1985, we have pursued a single mission — providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States."
    "In a recent decision [Judge Posner wrote] that “A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.”69 Posner concluded: “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”70"
  • Recent articles in the press. 
    • Birthright Citizenship - A Matter of Jurisdiction By Lynn Schott — Immigration and American citizenship are at the top of the news most everyday. Is citizenship a birthright? The Fourteenth Amendment contains the answer!
    • WashPost, George F. Will - An argument to be made about immigrant babies and citizenship —  A simple reform would drain some scalding steam from immigration arguments that may soon again be at a roiling boil. It would bring the interpretation of the 14th Amendment into conformity with what the authors of its text intended, and with common sense, thereby removing an incentive for illegal immigration. The op-ed includes a link to an article by Lino A. Graglia, A. Dalton Cross Professor of Law, University of Texas School of Law, ("Birthright Citizenship for Children of Illegal Aliens: an Irrational Public Policy", Texas Review of Law & Politics, v14, pp. 1-14, Fall 2009 -- 14 Tex. Rev. Law & Pol. 1) is freely available at http://www.trolp.org/main_pgs/issues/v14n1/Graglia.pdf.
    • Ending Birthright Citizenship; Don’t Amend the Constitution, Apply It | The Moral Liberal By Bryan Fischer — Sen. Graham wants to propose a constitutional amendment to bring an end to the practice by which the children of illegal aliens born on American soil are automatically granted U.S. citizenship. But we do not need to amend the Constitution; we just need to apply it. 
    • Arizona’s Law, Activist Judges and Anchor Babies - Opinionator Blog - NYTimes.com THE THREAD By TOBIN HARSHAW, July 30, 2010,  — A court ruling banning parts of Arizona's new law on aliens has put immigration at the front and center of the mid-term elections.
      The Thread is an in-depth look at how the major news events and controversies of the day are being viewed and debated across the online spectrum. Compiled by Tobin Harshaw, an Op-Ed staff editor at The Times, the Thread is published every Saturday and in response to breaking news.
    • Linda Chavez: The Case For Birthright Citizenship - WSJ.com — In The Wall Street Journal, Linda Chavez says it is a mistake for Republicans to sponsor an amendment that would deny citizenship to children born here to illegal immigrants.,
    • Birthright of a Nation By PETER H. SCHUCK, Op-Ed Contributor, NY Times, Published: August 13, 2010 — Professor Schuck is one of the authors of a study which takes up at length the theoretical problems surrounding birthright citizenship in the United States is Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent (1985).
      • "Congress plans to hold hearings this fall on a constitutional amendment to change that language, something even moderate Republican senators like South Carolina’s Lindsey Graham support"
      • "Fortunately, the history of the clause ["and subject to the jurisdiction thereof"] suggests an effective, pragmatic solution that should appeal to both parties."
      • "This history suggests that Congress can act on birthright citizenship without a constitutional amendment."
    • Alberto Gonzales, "Changing the 14th Amendment won't solve our immigration crisis", Sunday, August 22, 2010  — Like most Americans, I am a descendant of immigrants and a grateful beneficiary of the opportunities available to our nation's citizens. My grandparents emigrated from Mexico in the early 20th century seeking a better life, and they found it working in the fields and dairy farms of Texas. Diversity is one of the great strengths of the United States -- diversity fueled by the migration of ethnicities, cultures and ideas.
    • YouTube search: birthright citizenship — This link provides the search results (approximately 140).  The video links include links to the videos of scholars, such as Professor John Eastman.
    • Who is a citizen? The Founders left us a riddle. by Jonathon Turley, USA Today, 2010 Sep 14 — "The raging debate over illegal immigration has grown on a steady diet of rhetoric and recrimination. However, beneath all the hyperbole is a long-standing and unresolved debate over what it means to be a citizen. It turns out that the most foundational right contained in the Constitution — citizenship itself — is poorly defined and even more poorly understood.  • • •
          Since the founding, we have spent more time defining the rights of citizens than citizenship itself. It is not clearly answered in the history or language of the Constitution, despite representations on both sides of the debate. Rather than continuing to question the citizenship of millions, we should first resolve what it is to be a citizen. It is not a new question, but it is a question that we might now want to answer."
  • Birthright Citizenship in the United States: A Global Comparison  (Center for Immigration Studies), August 2010 — "The Center for Immigration Studies is an independent, non-partisan, non-profit, research organization.  Since our founding in 1985, we have pursued a single mission — providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States."

  
 

  • History: 0
    • 2010 Sep 09 — Initial Post
    • 2011 Jan 08 — Several additions. 
  • Links:  References on Birthright Citizenship at [http://swagman.typepad.com/curmudgeon/2010/09/references-on-birthright-citizenship.html.html]

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Copyright © Donald L. Nordeen.  All Rights Reserved.  See Copying Posts on This Weblog.
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Sep 9, 2010 10:48:53 AM | Courts & the Judiciary, Current Affairs, Public Policy Issues

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