The U.S. Supreme Court appears to be ready to hear a case seeking the end of so-called birthright citizenship. And it is about time, too. The practice has strayed very far from what the creators of the amendment it is based on meant for it to go.
Donald Trump has proposed that we put an end birthright citizenship, the one rule that has served to create the “anchor baby” phenomenon, which has been drawing pregnant mothers to the U.S. from every corner of the world. This would be the right move and it would be in keeping with the original intent of the Constitution and its requisite amendments.
Trump has said that birthright citizenship is a magnet for illegal immigration, and he says that it has been misused over the years. And he is correct.
Millions of immigrant women, pregnant or not, come here in order to have their child born on U.S. soil so that they can then claim citizenship for the child (and therefore, also themselves). This action has the benefit of giving cover tor family members of that sudden “new citizen” to stay in the U.S. and to give those family members free benefits courtesy of the U.S. taxpayer. The practice has also been used to lavish all sorts of undeserved benefits on migrants.
Unfortunately, what we have now is a situation where the law considers someone a “natural born citizen” based solely on the physical location of their birth. If a child is born anywhere inside U.S. territory, that child is an automatic citizen in current practice. This might seem logical, but is actually a perversion of the ideas of the 14th Amendment to the U.S. Constitution. It has also become a loophole by which millions of greedy foreigners have grabbed hold of U.S. benefits they do not deserve.
Birthright citizenship should absolutely be eliminated regardless of who the president might be.
Many think that the 14th Amendment set up automatic citizenship for all people born inside U.S. territory. But that just isn’t true. How we’ve ended up with BC is simply via court precedent, not actual law. It has just become “accepted,” not officially codified.
In fact the 14th Amendment does not say that people born in U.S. territory are automatically a citizen, nor did the writers of the 14th mean it to be observed that way.
The clause in question states the following: “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.”
During the debate of the 14th Amendment in 1868 there were two concerns. One was making sure recalcitrant southern states just coming back into the union after failing to win separation in the great Civil War could not oppress blacks and treat them as non-citizens. But a second worry was making sure American Indians did not become sudden citizens, themselves because of the amendment. So, while the writers of this amendment wanted to give citizenship to blacks, they wanted to avoid giving citizenship to foreigners–which Indians were then considered because they owed their allegiance to their Indian tribe or nation, not the U.S.A.
This was not meant to be merely punitive–and therefore “racist”–against Indians but was meant instead to codify to what a potential citizen owes allegiance. And this is the key question we need to understand.
The original drafters of the 14th Amendment were saying that a “citizen” is someone who holds no allegiance to another nation or government. Clearly the various American Indian tribes, many of whom were essentially at war with the U.S. in 1868, had not pledged their allegiance to the U.S.A. So, to give them automatic citizenship would have been a bit silly when at the time many had and were in the process of taking up arms against this country. Not only that, but the various Indian nations were already recognized by U.S. law as foreign nations.
So, the 14th was not meant in any way to confer citizenship merely by locale of birth. So, what did it mean? What was the criteria for allegiance?
The framers of the 14th meant to confer citizenship based on the parents’ allegiance, or to what “jurisdiction” they are “subject to.” And this is where we come into the debate for today.
As the framers of the 14th saw it, if a Mexican man and woman come to the U.S. to give birth to their child, this in no way means that they have “chosen” to give allegiance to America. Technically, they haven’t pledged allegiance to the U.S. at all unless they’ve begun the process of legal citizenship. On the other hand, if the child’s parents are natural born Americans or naturalized Americans, then those parents are naturally “subject to the jurisdiction” of the U.S.A. Notice the difference?
This means that any foreign born citizen–whether they be diplomatic personnel or visitors–are still citizens of their home country, wherever that may be. It also means any and all of their children are also foreigners and not Americans, even if they happened to be born inside our borders.
The Supreme Court of the U.S. has also noted this distinction. As Thomas Cooley noted in his 1891 book, “The General Principles of Constitutional Law in America,” the phrase “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”
Unfortunately, later opinions in a slew of court cases since has weakened the initial meaning of the law and bastardized it to mean the location of birth instead of the allegiance and “jurisdiction” of the child’s parents.
We need to erase those flawed precedents ande return to the true meaning of the 14th Amendment. Let there be no more anchor babies. Getting rid of the birthright citizenship convention is one we should be doing whether Trump is president or not.
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