Thread: Babies born in U.S. stir dispute

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Babies born in U.S. stir dispute
Some claim they 'anchor' parents; experts disagree

By Rosa Ramirez, Rocky Mountain News
August 29, 2006

She was 16 years old and scared, but Maria Guadalupe Valdez made the two-day trek through the desert to come to the U.S.

Twelve years later, the 28-year- old illegal immigrant is caught up in the debate over illegal immigration, and that frightens her, too.

She and her husband live in a tidy two-bedroom mobile home in Greeley with their four U.S.-born children, ages 9, 7, 6 and 1.

Their youngsters - three boys and a girl - motivate the couple to work long hours to build a better life for their family.

But these American children also are a symbol of controversy. Opponents of illegal immigration call them "anchor babies" - a term considered by many to be derogatory, even racist, because it implies that Hispanics are having children as a way to stay in the U.S.

The thinking is that U.S.-born children of illegal immigrants help "anchor" the parents in the country and keep them from being deported. The refrain is that "anchor babies" help their parents tap into a gamut of free or low-cost social services, burdening taxpayers with millions of dollars in medical care and services.

The reality is that having a child does little to help an illegal immigrant avoid deportation, achieve legal status or gain government services for themselves, experts say.

But to some extent, opponents of illegal immigration are right about the medical costs.

One in 10 births in Colorado is covered by emergency Medicaid, a category of federal aid specifically designed to cover medical care for those who are poor enough for Medicaid but can't prove legal status to qualify.

The state calls these mothers "noncitizens," which includes illegal immigrants, as well as legal immigrants with less than the required five years of U.S. residency to qualify for Medicaid. The department doesn't keep a breakdown of legal vs. illegal.

During fiscal 2005, emergency Medicaid paid $30.5 million - half state and half federal funds - for 6,707 deliveries to noncitizens in Colorado. The average payment to hospitals for each delivery was $4,547.

Emergency Medicaid for all kinds of health care accounts for just under 2 percent of the total Medicaid budget, so care for noncitizens isn't the primary source of spiraling Medicaid costs. And state and federal authorities say they do not think a large number of immigrants fraudulently sign up for Medicaid.

But the medical cost for a U.S.-born child of illegal immigrants doesn't stop with labor and delivery.

Children born to mothers who qualify for emergency Medicaid are automatically enrolled in Medicaid. And the state assumes those children will remain on Medicaid through the age of 18.

For 2005-2006, the program paid an average of $1,400 a year for each child on Medicaid in Colorado. At that rate, the projected health care cost of each U.S.-born child of a noncitizen is $25,200 over 18 years.

A U.S.-born child of low-income illegal immigrants is entitled to health care and food stamps. But the child's citizenship doesn't help the parent get those same benefits.

Law sets up ID process

People in the country illegally are ineligible for many government programs, no matter their child's status. In Colorado, a new immigration law, House Bill 1023, requires anyone 18 or older to comply with a strict identification process to get federal, state or local benefits. At the federal level, Medicaid on July 1 began requiring documentation of citizenship.

Most illegal immigrants come to this country to work, not to soak up social services, advocates and health care providers say. Most immigrants don't even know what services are out there, they say, which is why some clinics take health screening programs to immigrants' homes.

"They don't have a clue. They are honest working people that wouldn't do that (get services they aren't entitled to)," said David Adamson, executive director of Mountain Family Health Center in Glenwood Springs. He rejects the notion that illegal immigrants come here to have American babies to get American benefits.

Recent data from the Pew Hispanic Center show that immigrant women in the U.S. are having fewer children now than their cohorts did in the 1980s. There are just more women immigrants now.

But Mike McGarry, spokesman for the Colorado Alliance for Immigration Reform, believes illegal immigrants intentionally have U.S. babies.

"Anchor babies, by definition, is a strategy move," he said. "It anchors them more tightly in this country."

He said granting automatic citizenship to children of parents who are here illegally or those who come here on a tourist visa "is a travesty to the 14th Amendment."

The 14th Amendment to the U.S. Constitution says: "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."

McGarry said the amendment was intended to give citizenship to children of black slaves during the time of the Civil War, but it's now being abused by illegal immigrants.

"In the U.S., Congress has the power to eliminate that," McGarry said.

Constitutional amendments must be passed two-thirds of each house of Congress, then ratified by two-thirds of the states.

A gateway, if not an anchor

Whatever an illegal immigrant's intentions, for many, having a baby is what draws them to health care services.

Many young illegal immigrant women interviewed by the Rocky Mountain News said they first learned about the U.S. medical system when they became pregnant. Health care clinics then alerted them to other taxpayer-funded programs, such as the federal Women, Infants and Children (WIC) nutrition program for low-income pregnant women and children up to 5 years old.

Medical clinic officials also let pregnant women know that emergency Medicaid will pay for their delivery, if their income is low enough.

For the first half of 2006, pregnancy-related conditions made up nine of the top 10 reasons noncitizens showed up in emergency rooms, according to fresh data from the Colorado Department of Health Care Policy and Financing.

The only nonpregnancy condition on the top 10 list was emergency dialysis for kidney failure, which is often a consequence of untreated diabetes. Hispanics are twice as likely to have diabetes as Anglos, according to U.S. Department of Health and Human Services data.

Esther Montes, 32, from Jalisco, Mexico, said the first time she spoke to a U.S. doctor was in October 1997 - three years after arriving here illegally - when she was two months pregnant with her first child.

During prenatal visits, she learned from health providers that emergency Medicaid could pay for her delivery. She applied to get it for two other deliveries.

"They have always given me good health services," she said in Spanish during a recent trip to Salud Family Health Center in Commerce City for her 2-year-old daughter, Paloma.

On a recent Wednesday, Valdez, the illegal immigrant with four U.S.-born children, took her youngest, Elissabeth, to be weighed at the WIC office in Greeley to see if she was still eligible for vouchers.

"They told me she was underweight," she said in Spanish. She'll likely get the nutritional supplements until Elissabeth grows from her current 19 pounds to the desired 22 pounds, she said.

Montes, like many illegal immigrant mothers with U.S. citizen children, didn't really understand who pays for Medicaid. Many don't see Medicaid's coverage of their delivery or WIC services as a "benefit."

When asked what Medicaid is and how it's funded, Montes didn't know.

Erika Olivas, 19, who was born in Chihuahua, Mexico, and has lived in Colorado without papers for six years, said Medicaid covered delivery of both her children at Denver Health Medical Center, and she got WIC vouchers during her pregnancies.

Yet the single mother said, "I have never asked benefits for them."

Kids no help with legal status

Immigration lawyers say a lack of knowledge about immigration laws misleads many Americans into thinking a U.S.-born child gives a parent an express pass to legal status. It doesn't.

A U.S.-born child must turn 21 before petitioning the federal government on behalf of his or her parents.

"It would be probably next to impossible" to cross the border, have a baby and get legal status because of that child, said Kim Salinas, a lawyer and immigrant advocate.

"People would have to be thinking 21 years ahead. It just doesn't happen," Salinas said.

Under the law, immigrants who have lived in the U.S. illegally for a year or longer must return to their native country and wait 10 years to apply to re-enter legally, said Jeff Joseph, a Denver immigration attorney.

There are exceptions to the 10- year wait.

An immigrant might persuade authorities to let him stay in the country if a son or daughter who is a U.S. citizen can prove that he or she will suffer "extreme and unusual hardship" without the parent, said Joseph.

Such waivers are very difficult to obtain, however.

Advantages are clear

Illegal immigrant parents say they have children for the same reasons as anyone else. But the opportunities awaiting a citizen child encourage a parent to put down roots in the U.S.

And they do understand that their U.S.-born children have advantages and rights they don't have.

"They have a Social Security number and documents that they're here legally. They will be able to go to college and be fluent in Spanish and English because I'm going to teach them both languages," said Olivas, the 19-year-old with two U.S.-born children.

Olivas is relieved that her children won't ever face her current dilemma of not being able to go to college or get an office job because of her illegal immigrant status.

"I graduated from high school last year. I can't do anything with it (her diploma)," Olivas said.

Illegal immigrant Patricia Silva, 35, of Denver, said she believes her two U.S.-born children will have educational opportunities that her Mexican-born son won't ever have.

"If they have good grades and want to study, I've heard that the government helps them . . . with loans. That's only if they're good students," she said.

It's often those educational and job opportunities for their American children that are the real "anchor" that keeps illegal immigrant parents here.

In Valdez's case, she understands that her children can't help her fix her immigration status. She said she knows a woman who had lived in the U.S. longer than she has who was deported, despite having U.S.- citizen children.

She's hoping Congress will pass a law that will help her become legal. But if not, she and her husband will work here until "they get us out."

As for Olivas, she's determined to stay. Her children are American.

"They are from here. Why would I take them to Mexico where there's only poverty?"

By the numbers

68,922Number of babies born in Colorado in 2005.

24,616or 36 percent were born to parents on Medicaid.

6,707or 10 percent were born to noncitizens - illegal immigrants and legal immigrants in the U.S. less than five years - and paid for by emergency Medicaid. That's 27 percent of all Medicaid-covered births.Sources: Colorado Department Of Public Health And Environment, Colorado Department Of Health Care Policy And Financing

Children of illegal immigrants

• So-called "anchor babies" - children of illegal immigrants - are seen as a way for a parent to build ties to the U.S., get services and avoid deportation. But having a child who is a U.S. citizen does little to help an illegal immigrant gain legal status or government services, experts say.

• At least one in 10 babies in Colorado is born to noncitizens - i.e., illegal immigrants and legal immigrants in the U.S. less than the five years that are required to qualify for Medicaid. Those births are covered by a government program called emergency Medicaid.

• In the first half of 2006, pregnancy-related conditions made up nine of the top 10 reasons noncitizens showed up in emergency rooms. The other reason was emergency dialysis for a kidney failure, often a result of diabetes.

• For 2005-06, each child on Medicaid cost an average of $1,400 a year. At that rate, the projected health care cost of each U.S.-born child of a noncitizen is $25,200 over 18 years. The state assumes that children born on Medicaid will stay on it.

• Immigrant women in the U.S. are having fewer children now than immigrants did in the 1980s, according to the Pew Hispanic Center. But there are more women immigrants now.

ramirezr@RockyMountainNews.com Staff writer Rachel Brand contributed to this report.

The amnesty advocates make the mistake of thinking that the birthright policy is within the Constitution when it is in Horace Gray's gloss to the Wong Kim Ark decision.

On the other hand the change from automatic citizenship to a status of being as illegal as their parents is unpalatable to too many people.

There needs to be a middle path and I think that pathway is identifiable. The way is to have the anchor babies be the only people to receive the Senate package. They would not become citizens but they could receive legal status at 21.

It would be nice if the deport with parents policy was applied to minors. Then the anchor babies would have to apply to get back in but could not if they had a criminal record and could not automatically legalize their parents.

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Citizen status is English tradition
Birth rule predates country's creation

By Rosa Ramirez, Rocky Mountain News
August 29, 2006

Debate over whether a child born to illegal immigrants should get automatic citizenship goes back hundreds of years, before the United States itself was born.

Lawmakers in Congress have drafted legislation in recent years to stop giving citizenship based on birth in the U.S., but it has not moved forward.

The 13 original U.S. colonies, adopting the doctrine of jus soli in English common law, followed the principle that a person becomes a citizen of a country by being born there, according to a Congressional Research Service report published in September 2005.

Jus sanguinis, in contrast, is the principle that a person acquires the citizenship of his parents - "citizenship of the blood."

Congress passed the Naturalization Act of 1790 to address citizenship by naturalization for immigrants moving into the U.S.

But with no law on citizenship by birth, there was disagreement. Prominent legal scholars argued up until the Civil War that there was no actual U.S. citizenship separate from citizenship in a state.

Congress didn't address the issue of birthright citizenship until the Civil Rights Act of 1866, and the Constitution spelled it out in the 14th Amendment, ratified in 1868.

Before that, black children were not considered U.S. citizens, even those born to freed slaves, according to the CRS report.

Neither were U.S.-born children of Chinese parents because the Chinese Exclusion Act barred Chinese immigrants from becoming naturalized American citizens.

American Indians were not granted U.S. citizenship automatically, either. They had to fall under a statute or treaty between the U.S. and their specific tribe to gain American citizenship, the report said.

It wasn't until the Nationality Act of 1940 that all American Indians born in the U.S. were declared citizens.

The Fourteenth Amendment gives U.S. citizenship directly to anyone born here. But there continued to be confusion about who was a U.S. citizen.

In 1898, the U.S. Supreme Court ruled in the case of United States vs. Wong Kim Ark that children born here, regardless of their parents' citizenship, were indeed U.S. citizens. Wong Kim Ark was born in San Francisco to Chinese immigrant parents.

The UnConstitutionality of Citizenship by Birth to Non-Americans
By P.A. Madison
Former Research Fellow in Constitutional Studies
Last updated 4/18/06

We well know what federal law says on the subject of children born to non-citizens (illegal aliens) within the limits of the United States by declaring them to be American citizens. But what does the Constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the Constitutions Citizenship Clause, as found in the Fourteenth Amendment, we can find no Constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.

We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the Citizenship Clause of the Fourteenth Amendment, but what does "subject to the jurisdiction" mean? Jurisdiction can take on different meanings that can have nothing to do with physical boundaries alone--and if the framers meant geographical boundaries they would have simply used the term "limits" rather than "jurisdiction" since that was the custom at the time when distinguishing between physical boundaries, reach of law or complete allegiance to the United States.
It is important to understand what the text of the clause actually says: subject to the jurisdiction of the United States and not any particular State jurisdiction. This is why laws at the time were written to include both limits and jurisdiction of the United States when speaking of aliens. Take for example U.S. title XXX of 1875, sec 2165 where it states: "Any alien who was residing within the limits and under the jurisdiction of the United States..."
Here the law makes the distinction between simply residing in the United States and being under the jurisdiction of the federal government. This simply means that residing in the United States does not automatically put an alien under the jurisdiction of the United States. The reason mainly has to do with the fact the US Constitution does not give the federal government jurisdiction over a resident residing within a State -- only the States themselves was given this sole jurisdictional role.

It’s also equally important to understand that there is only one path for which an alien can come under the jurisdiction of the United States for purposes of citizenship: Through the process of naturalization that, among other things, requires a person to renounce all allegiance to their country of origin. The Fourteenth Amendment framers did not recognize as a matter of law that an alien giving birth to a child within the limits United States, is by itself, an act of naturalization on the part of the mother. This is because the naturalization of aliens is a process of rules set forth in naturalization laws, and not something an individual can accomplish through their own acts outside of these rules of law.
The principle behind birthright is the same as it was before and after the adoption of the 14th amendment: Only a citizen can make a citizen through the process of childbirth. Any other avenue to citizenship requires an act of naturalization under naturalization laws or perhaps, by treaty. President Lincoln's Attorney General, Edward Bates, wrote a opinion dated November 29, 1862 that stated: "The Constitution itself does not make the citizens, it is, in fact, made by them."
We are fortuante to have the highest possible authority on record to answer this question of how the term "jurisdiction" was to be interpreted and applied, the author of the Citizenship Clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:
Mr. HOWARD: I now move to take up House joint resolution No. 127.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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 accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]
One significant highlight about what Sen. Howard says above is that he regards the clause as simply declaratory of the "law of the land already" and is a virtue of "natural law" and "national law." Why this is significant is because some have mistakenly argued that the Citizenship Clause was somehow rooted in Common Law.
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment gives us the definition of what "subject to the jurisdiction thereof" means under the Fourteenth Amendment:
[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]
Sen. Howard concurs with Trumbull's construction:
Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]
In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the Constitution:
[Now], all this amendment [Citizenship Clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]
No doubt in the Senate as to what the Citizenship Clause means as further evidenced by Sen. W. Williams:
In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]
The reason the language "subject to the jurisdiction thereof" was chosen for the Citizenship Clause instead of the civil rights bill language that read "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed" was because Howard feared States could eventually impose a tax on Indian's, making them eligible for citizenship under the Fourteenth. Because of the language "subject to the jurisdiction thereof" required direct allegiance to the United States, Indian's would be disqualified because they owed their allegiance to their respective tribes which in return were considered foreign nations. In 1872 Sen. James K. Kelly sums up the clause and national law on the subject in the most clearest language that anyone could understand when he said "in order to be a citizen of the United States he must been not only be born within the United States, but born within the the allegiance of the United States."[7]
Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...
Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration after taking the American Citizenship Oath.
It's noteworthy to point out a Supreme Court ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), where the court completely discarded the fourteenth's Citizenship Clause scope and intent by replacing it with their own invented Citizenship Clause. The court in effect, ruled that Fourteenth Amendment had elevated citizenship to a new constitutionally protected right, and thus, prevents the cancellation of a persons citizenship unless they assent.

Unfortunately for the court, Sen. Howard effectively shoots down this feeble attempt to replace his clause with their own homegrown Citizenship Clause. Firstly, Howard finds no incompatibility with expatriation and the fourteenth's Citizenship Clause when he says: "I take it for granted that when a man becomes a citizen of the United States under the Constitution he cannot cease to be a citizen, except by expatriation for the commission of some crime by which his citizenship shall be forfeited."

Secondly, Sen. Howard expressly stated, "I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do."
The question begs: If Howard had no intention of passing a sweeping act of naturalization--how does the court elevate Howard's Citizenship Clause to a new conry sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]

The reason the language "subject to the jurisdiction thereof" was chosen for the Citizenship Clause instead of the civil rights bill language that read "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed" was because Howard feared States could eventually impose a tax on Indian's, making them eligible for citizenship under the Fourteenth. Because of the language "subject to the jurisdiction thereof" required direct allegiance to the United States, Indian's would be disqualified because they owed their allegiance to their respective tribes which in return were considered foreign nations. In 1872 Sen. James K. Kelly sums up the clause and national law on the subject in the most clearest language that anyone could understand when he said "in order to be a citizen of the United States he must been not only be born within the United States, but born within the the allegiance of the United States."[7]
Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...

Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration after taking the American Citizenship Oath.
It's noteworthy to point out a Supreme Court ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), where the court completely discarded the fourteenth's Citizenship Clause scope and intent by replacing it with their own invented Citizenship Clause. The court in effect, ruled that Fourteenth Amendment had elevated citizenship to a new constitutionally protected right, and thus, prevents the cancellation of a persons citizenship unless they assent.

Unfortunately for the court, Sen. Howard effectively shoots down this feeble attempt to replace his clause with their own homegrown Citizenship Clause. Firstly, Howard finds no incompatibility with expatriation and the fourteenth's Citizenship Clause when he says: "I take it for granted that when a man becomes a citizen of the United States under the Constitution he cannot cease to be a citizen, except by expatriation for the commission of some crime by which his citizenship shall be forfeited."

Secondly, Sen. Howard expressly stated, "I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do."
The question begs: If Howard had no intention of passing a sweeping act of naturalization--how does the court elevate Howard's Citizenship Clause to a new constitutionally protected right that cannot be taken away since this would certainly require a sweeping act with explicit language to enumerate such a new Constitutional right? Remember, the court cannot create new rights that are not already expressly granted by the Constitution.

A third problem for the court is the fact both Howard and Bingham viewed the Citizenship Clause as simply "declaratory" of what they regarded "as the law of the land already." This then requires flights of fantasy to elevate Howard's express purpose of inserting the Citizenship Clause as simply removing "all doubt as to what persons are or are not citizens of the United States," and not to elevate citizenship to a new protected Constitutional right. Citizenship is a privilege, not a right as say the right to freedom of religion is, and therefore, can be taken away just as any other privilege can.
James Madison defined who America seeked to be citizens among us along with some words of wisdom:
When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[8]

What does it all mean?

In a nutshell, it means this: The Constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American borders.
It is the allegiance (complete jurisdiction) of the child’s birth parents at the time of birth that determines the child’s citizenship--not geographical location. If the United States does not have complete jurisdiction, for example, to compel a child’s parents to Jury Duty–then the U.S. does not have the total, complete jurisdiction demanded by the Fourteenth Amendment to make their child a citizen of the United States by birth. How could it possibly be any other way?
The framers succeeded in their desire to define what persons are, or are not, citizens of the United States. They also succeeded in making both their intent and construction clear for future generations of courts and government. Whether our government or courts will start to honor and uphold the supreme law of the land for which they are obligated to by oath, is another very disturbing matter.

Footnotes
[1]. Congressional Globe, 39th Congress (1866) pg. 2890
[2]. Id. at 2893
[3]. Id. at 2895
[4]. Id. at 2893
[5]. Id. at 2897
[6]. Id. at 1291
[7]. Congressional Globe, 42nd Congress (1872) pg. 2796
[8]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3, 1790.

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Rethinking Birthright Citizenship
Aug 29 2006 10:37AM
http://sayanythingblog.com/index.php
This is interesting, though it's from 2005.


Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship.

Here is the pertinent text from the 14th amendment:

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.

I think it's pretty clear from that clause that in order to be able to claim birthright citizenship in the United States you must meet two criteria:

Be born in the United States.


Be subject to the jurisdiction of the United States.

Obviously a child born to illegal immigrants here in the United States meets the first criteria, but does the child meet the second criteria?

I don't think so. Illegal immigrants are, by definition, subjects of another nation. Most illegal immigrants who are currently in this country are citizens of Mexico, for instance. Thus, by definition, these illegal immigrants are not subject to U.S. jurisdiction. They're often detained by law enforcement here in the U.S. and charged/convicted of crimes, but ultimately they are Mexican citizens and subject to the jurisdiction of that country, not this one.

That America exercises jurisdiction in the absence of any willingness on Mexico's behalf to exercise jurisdiction does not change that fact.

Consider Americans traveling abroad in, say, France. If an American is in Paris and steals a car and then subsequently is arrested that American can be tried and convicted under French laws. Does that mean the American is subject to France's jurisdiction? Only so far as the American government is willing to allow. And usually our government does allow American civilians to stand trial for crimes they've committed in foreign courts as long as there are assurances that the trial will be in keeping with the rights American citizens are granted by our Constitution.

For most countries to which Americans routinely travel there are treaties and agreements in place as to how to deal with foreign citizens who commit crimes, but none of these treaties change the fact that the foreign citizen in question is ultimately under the jurisdiction of his/her home country, not the country he/she is in.

Because of this, I don't think that children born in the United States to illegal immigrants (or other people who are in the U.S. but not citizens) are automatically citizens of this country. Now, obviously, the federal courts have ruled otherwise using reasoning contrary to mine, but I think the Constitution is actually pretty clear on this subject.

It's just sad we've gone away from it.

http://caselaw.lp.findlaw.com/data/cons ... endment14/

U.S. Constitution: Fourteenth Amendment
Fourteenth Amendment - Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection


Amendment Text | Annotations
Section. 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.