An argument to be made about immigrant babies and citizenship

By George F. Will

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."

6 comments (Add your own)

1. gxgxlapihxi wrote:
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Thu, September 8, 2011 @ 2:43 AM

2. Naga wrote:
B) the pesky issue of the Constitution being the highest law in the land prttey much means the DoI can literally be ignored (and since it means whatever politicians and judges want it to mean, the fact that politicians and judges have, from day one, decided that it means that rights come from the government means that rights come from the government (when the Constitution is no longer the highest law in the land, you can get back to me));The sad fact of the matter is that the Constitution itself only means what 5 Supreme Court justices say it means. Think you have private property rights? Read the Kelo decision and think again. The same applies to just about any other type of right you might believe you have.While the Declaration of Independence has no point in law, it provided a statement of purpose of why we broke from British rule. Read Lincoln's addresses, especially the Gettysberg Address, and you'll see what the DoI meant to him."Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

Sat, September 1, 2012 @ 11:23 PM

3. teictvdril wrote:
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Sun, September 2, 2012 @ 3:02 PM

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Mon, September 3, 2012 @ 2:31 AM

5. Yaren wrote:
It is time to send them all home, we have given amnesty in the past and they still come asrcos our boarders. Send them all back home and tell them there are legitimate channels to come to the United States of America and if they come any way but through the proper channels they will be sent back home once again.I know that there are some businesses that think they have to have illegal immigrants to sustain their businesses and the Republicans are listening to them, I also know that the Democrats are thinking if they are given amnesty once again that they will surely vote for them in the next election cycle.I really do not care what the political reasons are for wanting to give amnesty, I just think they should all be sent home and told that there is only one way to come to this country and that is through a illegal avenue. Put up a fence and shoot to defend the boarder. Provide worker visas if needed but keep track of the people that have received these visas. Make sure they are paying taxes on the money they earn as well as the employers are paying their share of taxes and health care. There are already laws on the books; they just need to be enforced. If the employers are hiring illegal’s then shut down their plants until such time they comply with the laws and send anyone with phony papers back to where they came.

Mon, October 8, 2012 @ 9:00 AM

6. ekdhxjw wrote:
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Mon, October 8, 2012 @ 4:11 PM

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