Born in the U.S.A.: Does that guarantee citizenship?
There's actually no mandate

By JOHN C. EASTMAN
SPECIAL TO THE REGISTER
September 16, 2007
http://desmoinesregister.com/apps/pbcs. ... /-1/LIFE04

When immigration activist and sanctuary beneficiary Elvira Arellano was arrested in Los Angeles and deported back to Mexico last month, claims of unfairness were leveled because she was being separated from her son, a U.S. "citizen." Similarly, Yaser Esam Hamdi, captured on the battlefield in Afghanistan and held in Guantanamo Bay, was transferred to Norfolk, Va., and treated as a citizen after it was discovered that he had been born in Baton Rouge, La., some 20 years earlier.

Most people in the country today take for granted the claims that Arellano's son and Yaser Hamdi are citizens. Mere birth on U.S. soil, no matter the parental status, is alone sufficient, according to the received understanding of the Constitution. This is true, they believe, despite the fact that Arellano's son was born while his mother was in this country illegally, and Hamdi was born while his parents were residing in the United States on a short-term work visa.

The Constitution does not actually mandate such a result.

To be sure, the Fourteenth Amendment guarantees citizenship to anyone "born or naturalized in the United States and subject to the jurisdiction thereof," but for those who drafted and ratified the clause, "subject to the jurisdiction" meant much more than mere territorial jurisdiction. Being born in the United States while subject to the political jurisdiction - the "I-pledge-allegiance-and-can-be-prosecuted-for-treason" type of jurisdiction - was required. As Senator Reverdy Johnson of Maryland noted during floor debate at the time the clause was proposed, the citizenship clause simply provides "that all persons born in the United States and not subject to some foreign power . . . shall be considered as citizens of the United States." The author of the provision, Senator Jacob Howard, maintained that the clause "will not, of course, include foreigners."

Thirty years after the 14th Amendment was ratified, the Supreme Court expanded the constitutional mandate slightly, holding that the children of legal, permanent residents were automatically citizens, but the court has never held that the clause also confers automatic citizenship on the children of temporary visitors, much less on the children born to those who are in this country illegally. We have simply backed into that understanding, without consideration of the actual meaning of the citizenship clause or concern about the consequences to other constitutional text and principles.

One such principle is the idea of government by consent. Birthright citizenship permits some to demand citizenship unilaterally, without the consent of the political community in which membership is claimed. It is therefore incompatible with a system of government based upon consent of the governed and, when utilized by those who enter this country illegally, the rule of law as well.

The lessons learned by the "unilateral citizen" children of illegal immigrants are, unfortunately, not the principles of the Declaration of Independence and the Constitution, but rather those of a culturally separate underclass whose illegal residence among us all but assures a deep suspicion, rather than embrace, of our governing institutions and principles.

And the lessons learned by others - legal immigrants who patiently wait for their turn at a new life in America, for example- is a lack of respect for the rule of law that will ultimately threaten our entire system unless we get serious about removing the inducements to illegal immigration, including birthright citizenship.

JOHN C. EASTMAN is dean and Donald P. Kennedy Chair in Law at Chapman University School of Law in Orange, Calif.
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14th Amendment says so
http://desmoinesregister.com/apps/pbcs. ... /-1/LIFE04
By JAMES C. HO
SPECIAL TO THE REGISTER

Children born in the United States are legally entitled to U.S. citizenship, regardless of the nationality of their parents. Some immigration-reform advocates believe that this entitlement encourages illegal immigration and should therefore be repealed. Others respond that this long-standing rule reflects well-established American values.

Whatever side one may take on this emotional issue, however, is beside the point, because the Constitution speaks directly to the issue of birthright citizenship. The only way to change the rule is a constitutional amendment - which is unlikely in the extreme. Proponents of immigration reform would be better off focusing their energies on proposals with a more realistic chance of success.

The first sentence of the 14th Amendment makes clear that birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower. Ratified in 1868, the amendment states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

The primary purpose of this provision was to reverse the U.S. Supreme Court's infamous Dred Scott decision, which denied citizenship to U.S.-born people of African descent. But the amendment was drafted broadly to guarantee citizenship to virtually everyone born in the United States.

Proponents of repealing birthright citizenship argue that all aliens - both lawful and unlawful - are not "subject to the jurisdiction" of the United States because they swear no allegiance to it. But nothing in the 14th Amendment supports this interpretation.

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common-law doctrine.

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship - but no one disputed the amendment's meaning. Opponents conceded - indeed, warned - that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

The U.S. Supreme Court has long taken the same view. In 1898, the court held in United States v. Wong Kim Ark that the U.S.-born child of Chinese immigrants was constitutionally entitled to citizenship, noting that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory... including all children here born of resident aliens."

The court has reiterated this view in subsequent decisions. In Plyler v. Doe (1982), the majority concluded, and the dissent agreed, that birthright citizenship under the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. And in INS v. Rios-Pineda (1985), a unanimous court agreed that a child born to an undocumented immigrant was in fact a citizen of the United States.

But just because the effort to repeal birthright citizenship by statute is unconstitutional doesn't mean that folks won't try. Stay tuned: Dred Scott II could be coming soon to a federal court near you.

JAMES C. HO is an appellate and constitutional lawyer in Dallas. He formerly served as a law clerk to Justice Clarence Thomas and as chief counsel to the U.S. Senate Subcommittees on the Constitution and Immigration.