Rosen: Birth rights and wrongs
denverpost.com
opinion
By Mike Rosen
Posted: 08/25/2011 01:00:00 AM MDT

Southern California has become a hub of so-called birthing tourism." So observed the Los Angeles Times in a story earlier this year about three townhouses in a residential neighborhood of San Gabriel that had been converted into maternity centers for upscale Chinese women, providing them with room, board and care before and after their babies are born.

The actual delivery, however, takes place in California hospitals. Why? Not primarily for the quality of medical services. The prize they seek is a very important document: a U.S. birth certificate. As the story noted, these Chinese women are "willing to pay handsomely to travel here to give birth to American citizens."

Unlike illegal immigrants who cross our southern border, these pregnant Chinese women don't enter our country illegally. They come on tourist visas, stay for a few months and then most go home to China with their newborns who have the option of returning someday as full-fledged American citizens, entitled to all the rights and benefits that includes.

I've written before about the current legal misinterpretation of birthright citizenship under the 14th Amendment. This case study in birthing tourism is a graphic example of its abuse. Here's a review.

The amendment was written in 1866 following the Civil War and ratified in 1868. In addition to punishing the confederate rebellion, it was intended to abolish the legacy of slavery. Section 1 effectively granted citizenship and all constitutional protections to former slaves "born or naturalized in the United States, and subject to the jurisdiction thereof." That key phrase doesn't mean subject to our laws; it refers to persons who owe no allegiance to another country. That is, who were not citizens of another country or children of citizens of another country.

Consistent with that precise intent, the same Congress that wrote the 14th Amendment passed a civil rights law, also in 1866, restricting American citizenship to those born here "and not subject to any foreign power." Rep. John Bingham of Ohio, the author of the 14th Amendment, confirmed "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."

It was this same concern about divided national loyalties that restricted presidential eligibility, in Article II, Section 1 of the Constitution, to "natural born citizens." In 1862, U.S. Attorney General Edward Bates declared, "The Constitution does not make a citizen; it is in fact made by them." That is, for a child to be born a U.S. citizen, he must be born to a U.S. citizen, not an immigrant — legal or illegal. That's why children born in the U.S. to foreign diplomats are not regarded as U.S. citizens.

While on vacation and carrying a U.S. passport and visa, if you give birth to a baby in France, Canada or Mexico, your child is not granted citizenship by any of those governments — and certainly not if you're there illegally. As a sovereign nation, we have every right and prerogative to determine our immigration policies. That includes the number of immigrants we allow in, the selective qualifications they must satisfy, as well as limitations on how many from each country. Do you imagine France would allow 80 million German immigrants to overwhelm its sense of French culture?

Advocates of automatic birthright American citizenship for the children of illegal immigrants argue that children shouldn't be punished for their parents' crimes. That seems fair. But neither should they be rewarded for their parents' crimes. American citizenship isn't just another social program. While it's a fundamental right to those who are born to American citizens, to all others there should be nothing automatic about it. It's an honor and a privilege that must first be offered and then earned.

Freelance columnist Mike Rosen's radio show airs weekdays from 9 a.m. to noon on 850-KOA.

http://www.denverpost.com/opinion/ci_18750162