Opinion

The Constitution doesn’t grant citizenship to the children of illegals

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Dr. John C. Eastman
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      Dr. John C. Eastman

      Dr. Eastman is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law in Orange, California.

Update: Linda Chavez responds to Eastman’s arguments here.

From the very opening of her “Case for Birthright Citizenship,” published in the August 11 issue of The Wall Street Journal, my good friend Linda Chavez demonstrates a misunderstanding of both the Fourteenth Amendment’s Citizenship Clause and the recent efforts by Republican leaders in Congress to address the very significant inducement to illegal immigration that birthright citizenship provides.  Although sometimes inartfully expressed, the argument is not that the Fourteenth Amendment should be amended to repeal birthright citizenship but that, properly understood, the Fourteenth Amendment does not actually guarantee birthright citizenship nearly as broadly as Chavez claims.

Here’s the crux of the dispute.  The text of the Fourteenth Amendment’s Citizenship Clause provides that “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.”  That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born.  In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders.  Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction.  For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete.  Think of it this way.  When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.”  He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road.  He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States.  He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

So which of the two understandings of jurisdiction did the drafters and ratifiers of the Citizenship Clause have in mind?  Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question.  Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”  And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”  Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

  • lamecherry

    Dr. Eastman exposes exactly the ignorance of Constitutional Law which is far too abundant in liberal America from anti gun laws to the current Ground Zero mosque protected by the Second and First Amendments, which taints fine people’s understanding like Ms. Chavez.

    What Dr. Eastman does not comprehend though in his post based upon actual Constitutional Law, is that according to the British Nationality Act of 1948 which Barack Hussein Obama was born under, and is still subject to, in having a Kenyan colonial and his underage wife, Mr. Obama is British, and no matter where he was born from Hawaii to Kenya, Mr. Obama is a British subject according to the 14th Amendment.
    Mr. Obama was never naturalized to become even a US Senator, and as being an undocumented illegal, he is not qualified as Bill Clinton suggested in 2008 in an interview from Africa to Kate Snow of ABC News.

    If one adds the Indonesian adoption, Mr. Obama is a dual citizen of Britain and Indonesia, and has promoted fraud in the online birth certificate which would not be legal for a passport, voter registration, driver’s license or government job.

    This sweep to claim America is not racist like Europe in installing Mr. Obama is the crux of the entire illegal issue and is proving the Birthers have been Constitutionally correct in their court filings. Mr. Obama as Americans find they dislike massive debt, rationed death and other Marxist issues, are going to return to the Birther issue find a way to remove their voting mistake.

    Hispanics will rue the day they installed Mr. Obama, as the trend is building from Islamic Ground Zero mosques, to draw the line in the sand by native born and legal immigrants, which in turn will have in Eric Holder’s ludicrous suit against Arizona, initiate a western European trend from the lowlands to France to reverse this importation of literal 3rd world slave labor which benefits liberal elections and robber baron’s exploiting these illegals.

    Mr. Obama in his Marxist policy from a weary America, may be deemed not covered by the 14th Amendment as liberals stung from election defeats retaliate and in that trend as Dr. Eastman notes, will roll the implementation of the 14th Amendment as the 2nd Amendment is being upheld even in Chicago thugocracy.

    Dr. Eastman unintentionally exposes Ann Coulter as moronic in her attacks on Birthers as the 14th trumps her and other Obamite voters.

    The Mexican’s worst nightmare is what America will do when Mr. Obama’s bankruptcy inflates his super depression in the following years. Expediency is not impeachment on high crimes. Expediency is Mr. Obama disqualified on 14th Amendment jurisdiction.
    When Britisher Indonensian citizen Obama is exposed, then the Mexican illegal will be swept away in this flood.

    54% of Americans disapprove of Mr. Obama. That is over 160 million people now listening for a legal way to rectify the 2008 elections in that mistake.

  • libertariancomment

    I’m so tired of people hiding their ridiculous policy and political ideas behind a constitutional argument. Let’s talk policy, in terms of what we want to do and then if the law needs to be fixed, how about we let congress make the law we need? What Chavez needs to deal with is whether she thinks it’s a good idea to allow illegals to abuse birthright citizenship in the way that they do. If she thinks that’s good for this country, well okay, let her stand up and defend it. It, of course, is tremendously detrimental to our country and should not be tolerated. If we need a constitutional amendment, well then let’s get it going. But please, I can’t make sense of abstruse legal arguments. Let’s tell the lawyers what we want instead of having them tell us what we can do.

  • independentvoter

    Here’s the part I am not understanding which afforded citizenship to “all persons born in the United States and not subject to any foreign power.” the parents of these kids are born from a foreign power (there country of birth)..and when the kids are born they are citizens of their parents also.. This is especially prevalent in Mexican citizens who are STILL citizens of MEXICO and hold MEXICAN citizenship and their kids when born here are citizens of their MOTHERS country according to MEXICO.. therefore hold duel citizenship.. they are allowed to use the MEXICAN consulate etc.. this would make them subject to a foreign power.. when a child in this country is born to parents who are American citizens have NO other country they are citizen of therefore are not subject to any foreign power..

  • MerryJ1

    Melsonr is right it seems, that Constitutionality and how the law should be interpreted have nothing to with how the 14th is currently applied. And, the present political discourse is unlikely to resolve things — even while pregnant illegals continue to enter the country so they can “drop anchor” inside our borders.

    Since the various states have to pay the costs for health, education, additional law enforcement burdens and sundry social services due to this influx, however, it is up to the individual states to curb the problem within their respective borders.

    One way to do that would be to pass state legislation spelling out grounds, including but not limited to illegal presence within the jurisdiction, as endangering the welfare of a child(ren) and calling for severance of parental rights, with removal of any/all minor children from the illegals’ care and influence (with the children transferred to group or foster homes and/or made available for adoption by American citizens). Pregnant illegals who come here specifically to gain “citizenship” status for their expected newborns would avoid such states, and illegals with children currently residing in those states would likely move to another state or return to their native land.

  • theocracy

    I don’t know, call me an Originalist, but if I read Section 1 of the Fourteenth, it says born or naturalized in the United States and subject to the jurisdiction thereof. Not too much to interpret there, unless you’re one of those activist judges.

    • http://www.facebook.com/people/Deron-Reid/1029130975 Deron Reid

      the “and” is the important part. born “and” subject to. not either or (born “and/or” subject to) . i think that maybe what you are missing.

  • melsonr

    The problem, however, is that Chavez is correct with respect to how the provisions of the 14th Amendment are currently applied. The Bureau of Consular Affairs of the State Department and the (former) Immigration and Naturalization Service, as the agencies tasked with determining citizenship of persons applying for regularization of their status, have ruled that, except for specifically exempted classes of applicant (children of diplomats, for example), all persons providing proof of birth in the United States are citizens or nationals thereof. As a result, a valid birth certificate showing birth in, say, El Paso, Texas, is sufficient to prove a person’s US citizenship. This, of course, is the source of the “anchor babies” and the mechanism whereby many families obtain immigration visa precedence and status.

    You may well be 100% correct – I daresay you are – but in this case being correct has nothing to do with how the 14th is applied on a daily basis.