U.S. should curb birthright citizenship

March 28, 2010


— 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 illegal immigrant mothers. Graglia seems to establish that there is no constitutional impediment to Congress ending the granting of birthright citizenship to persons whose presence here is “not only without the government’s consent but in violation of its law.”

— George Will is a columnist for Washington Post Writers Group. georgewill@washpost.com


just_another_bozo_on_this_bus 8 years, 1 month ago

"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."

At the time it was written, the country was looking for immigrants to settle all the land stolen from Indians, as well as land stolen from Mexico twenty years previous. But while (mostly Republican) business owners still want illegal immigrants who'll work for cheap at jobs most Americans don't want to do at the paltry wages and benefits and miserable working conditions these business owners have to offer, these same Republicans are more than willing to rouse the rabble of mostly white Teapartiers who feel threatened by the mostly brown-skinned recent immigrants.

SnakeFist 8 years, 1 month ago

First, a person's allegiance (whatever that means) has nothing to do with the person being subject to jurisdiction. Next time you're in court, try telling a judge that he has no authority over you because you deny allegiance to Kansas.

Second, on the issue of citizenship requiring the U.S.'s consent, the U.S. expressed its consent in the 14th amendment, i.e., it consents to the citizenship of anyone born on U.S. soil and subject to U.S. jurisdiction.

I thought conservatives put more stock in the plain language of the Constitution. Perhaps only when it suits them?

cowboy 8 years, 1 month ago

I really think we should let a few of the southern states secede and watch the migration of racists to these areas. after a few years they would not have anyone left to oppress but themselves. Having been raised in the southwest amongst mexican , spanish , populations I found them to be a noble group of people. They are us , they are your military , your neighbor , your nurse , your cop , your attorney , your judge , your laborer. Unlike these racists spewing anti-immigration crapola they are great people.

Jock Navels 8 years, 1 month ago

there are 4 factors of economic production: natural resources, labor, capital, technology. the capitalists, the corporations, the money that controls the government, call for the free flow of all but one of these factors. Why does their ideology call for unfettered free flow of capital, resources and technology, but try to lock down human labor? Solve the illegal immigration problem by returning to the old way...anybody can go anywhere they want, and get a job. freedom.

Randall Uhrich 8 years, 1 month ago

By George Will's argument, his own parents or grandparents or great-grandparents may have been denied citizenship. By extrapolation, maybe George wouldn't be a ciltizen either. Way to go, Bozo! What an idiot.

Brent Garner 8 years, 1 month ago

Mr. Will's main focus is urging the elimination of the practice that leads to "anchor babies". This practice is the practice of crossing into the US solely so the baby can be born here and thus be an automatic citizen. This also usually results in the mother, at least, being allowed to stay. Thus the term "anchor baby". What this practice does is, as Mr. Will states, creates an incentive above and beyond the draw of the overly generous US welfare system, for people, particularly pregnant women, to enter the US illegally. His point about wondering why we incentivize the violation of our own immigration laws is a valid point. Further, given that a rising, a significant rising, percentage of crime is now directly attributed to illegal immigrants I marvel that there exist so many people who advocate this open borders approach. I am all for legal immigration. I am against illegal immigration. Obey our laws. Don't subvert them. Don't twist them. Otherwise, stay home!

rbwaa 8 years, 1 month ago

"...given that a rising, a significant rising, percentage of crime is now directly attributed to illegal immigrants..."

where is the research that supports this claim?

imastinker 8 years, 1 month ago

The problem isn't immigration - it's the massive entitlement programs we have.

Jimo 8 years, 1 month ago

Brent Garner -- please describe further this 'favoring legal immigration' approach of yours, particularly the part where sufficient numbers of immigrants are admitted to the country so as to fill up the available jobs and leave none to the 'illegal' immigrants.

I suspect this comment of yours is merely a throw-away line as the mechanism for ending 'illegal' immigration has long been disavowed by a vociferous group of bigots who refuse to assent to an influx of 'darkies' and lazy native-born Americans atwitter at the threat of competition for jobs at the local Quickie-Mart.

No one with the slightest understanding of how dysfunctional our 'legal' immigration system is would have any difficulty understanding why so few avail themselves of it.

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