Thread: An Argument to be Made about Immig. Babies & Citizenship

An argument to be made about immigrant babies and citizenship

Demonstrators march in front of the Capitol Hill in favor of immigration reform March 21. (Jose Luis Magana/associated Press)

By George F. Will
Sunday, March 28, 2010

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.

To end the practice of "birthright citizenship," all that is required is to correct the misinterpretation of that amendment's first sentence: "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." From these words has flowed the practice of conferring citizenship on children born here to illegal immigrants.

A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, "can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state." Therefore, "It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry."

Writing in the Texas Review of Law and Politics, Graglia says this irrationality is rooted in a misunderstanding of the phrase "subject to the jurisdiction thereof." What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.

The Civil Rights Act of 1866 begins with language from which the 14th Amendment's citizenship clause is derived: "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." (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning -- divided allegiance -- applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. Indeed, today's regulations issued by the departments of Homeland Security and Justice stipulate:

"A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment."

Sen. Lyman Trumbull of Illinois was, Graglia writes, one of two "principal authors of the citizenship clauses in 1866 act and the 14th Amendment." He said that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, meaning "not owing allegiance to anybody else." Hence children whose Indian parents had tribal allegiances were excluded from birthright citizenship.

Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent." Graglia says this decision "seemed to establish" that U.S. citizenship is "a consensual relation, requiring the consent of the United States." So: "This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal."

Congress has heard testimony estimating that more than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally. Graglia seems to establish that there is no constitutional impediment to Congress ending the granting of birthright citizenship to those whose presence here is "not only without the government's consent but in violation of its law."

georgewill@washpost.com

http://www.washingtonpost.com/wp-dyn/co ... 03077.html

See:
Rep. Nathan Deal Reintroduces Bill to End Birthright Citizenship
http://www.numbersusa.com/content/news/ ... nship.html

George Will and Citizenship
By Mark Krikorian, March 29, 2010

George Will has never been particularly good on immigration, so I was a little surprised by his column calling for an end to automatic citizenship at birth (specifically, for the U.S.-born children of illegal aliens).

There are three issues: legal, empirical, and political. The first is the easiest — there just is no way to argue with a straight face that the drafters of the 14th amendment intended to give citizenship to the children of illegal aliens (Will persuasively cites this law review article by Lino Graglia). In fact, the amendment probably wasn't meant to apply even to U.S.-born children of legal immigrants who hadn't yet become citizens, though the Supreme Court decided otherwise in the 1898 Wong Kim Ark decision.
http://en.wikipedia.org/wiki/United_Sta ... ng_Kim_Ark

Second is the empirical question. Will writes:

A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, "can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state." Therefore, "It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry." [my emphasis -- MK]

This may or may not be true. We can theorize about incentives all we want, but I haven't seen any real research on the motivations of people considering illegal immigration to the United States. (If anyone knows of such research, let me know.) In the case of birth tourism, the motivation is obvious, but most illegal-immigrant mothers aren't in this category. While I'm open to persuasion, right now I just don't buy the argument that having U.S.-citizen children is a significant enough magnet — as opposed to easy access to jobs or coming to join family members — to persuade people to move here illegally.

Third is the political question. Will describes the change in our citizenship practices as a "simple reform," but it would be anything but simple. The political mobilization required to get Congress to effect such a change would be huge, and it would be immediately challenged and the Supreme Court would make the ultimate decision. Such a herculean effort would mean we weren't spending that political capital on efforts to limit illegal immigration in the first place, so we'd end up with continued large flows of illegal immigration, except the children those illegals have here would be, what — U.S.-born illegal aliens? Does anyone think that after five or ten years of that, Congress wouldn't just relent in the face of endless stories about little Bobby who won the science fair but can't become president even though he was born here? Then, all that political effort will have been wasted.

Worse yet, there are a lot of libertarian open-borders supporters who'd agree on the citizenship change, and so they'd jiu jitsu restrictionists by agreeing to the change as a way of continuing mass legal and illegal immigration. (This may be what Will has in mind when he writes that changing citizenship rules "would drain some scalding steam from immigration arguments that may soon again be at a roiling boil.") This is similar to what happened in 1996, when Sen. Spencer Abraham and other mass immigration supporters deflected attention and effort from the measures that would have modestly reduced legal immigration (endorsed by Barbara Jordan's bipartisan Commission on Immigration Reform) by emphasizing instead measures to cut certain legal immigrants off certain welfare programs. It was a successful political trick (not least because some restrictionists fell for it), killing the legal-immigration cuts but resulting in no reduction in the gap between native and immigrant welfare use, as Congress rolled back some cuts, states picked up the slack, and immigrants naturalized to retain welfare eligibility.

On the other hand, if that same political effort were directed at limiting illegal immigration in the first place, then the citizenship rules wouldn't matter as much because there just wouldn't be that many illegal aliens giving birth here.

In other words, the problem of U.S.-citizen children born to illegal aliens is a symptom of excessive illegal immigration, not a cause. In a sense, it's parallel to the left's Cold War mania for arms control — so long as the Soviet Union existed, arms control agreements were meaningless because Moscow had no intention of complying. Once the USSR ended up in the ash-heap of history, arms control agreements were rendered irrelevant because the Russians were no longer trying to take over the world.

It just makes more sense to render our citizenship practices politically irrelevant in this context by limiting illegal immigration in the first place. That's what "would drain some scalding steam from immigration arguments."

http://www.cis.org/krikorian/george-will-citizenship

Links in the original are available by clicking on the source link above.