On Citizenship, Do Not Disturb the 14th Amendment
Ricochet member Cindy writes:
I would love to see a discussion of the 14th amendment on Ricochet. Citizenship, anchor babies, the Constitution. Maybe in response to this morning's WSJ editorial The Case For Birthright Citizenship by Linda Chavez. Also George Will.
It is odd that we are now in a position where people are looking closely at the first sentence of the fourteen amendment. It reads:
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.
The difficulty comes with the words, "subject to the jurisdiction thereof." One account is that it covers only people with diplomatic immunity and the like. The broader view is that it covers people whose loyalties are elsewhere, e.g. citizens of other countries. The evidence is divided naturally, and with a relatively open immigration policy in the late nineteenth century, the issue did not gain salience at the time. Aliens could often vote in local elections, for example. Worldwide we are alone in taking the view that children born of illegal aliens become citizens. Again there is always the position that no one should profit from their own wrong, by conferring benefits on their children. And it is not just illegals to whom this could apply. What about people who give birth while on jobs in the United States?
For the moment, I would not want to weigh in on these legal fine points in the face of a long-established practice. The bigger problem is perhaps attracting immigrants to our shores, which we won't do if regulation makes it hard for us to become again a land of opportunity. Let this one rest.
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Re: On Citizenship, Do Not Disturb the 14th Amendment
I think the idea that the Fourteenth Amendment doesn't give citizenship to babies born within the territory of the United States misreads the Constitution. And I think amending the Constitution is a bad idea. The Fourteenth Amendment says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof" are citizens. Critics think that the "subject to the jurisdiction thereof' excludes aliens. I think that most everyone within the territory of the United States is subject to its jurisdiction. For example, the United States or the states can prosecute any murder that occurs within our territory, because they are in our jurisdiction. I haven't done the research into this, but it seems to me that people outside the jurisdiction of the US but within our territory would be isolated cases, like foreign diplomats, enemy soldiers, Indians, and the like. [1/2]
Re: On Citizenship, Do Not Disturb the 14th Amendment
I also think it would be a bad idea to amend the Constitution, putting to one side that it has no chance and that we ought not amend our Constitution too often to solve policy problems that can be addressed through the normal political process. Citizenship by birth in the United States, after all, is how most people became citizens. Unlike some other countries, there is no definition of citizenship as on membership in a certain race or people. There was no United States people that pre-existed and were independent of the nation, unlike say Germany or Italy. Citizenship by birth is one of the important distinctions that makes America what it is, a country of immigrants. [2/2]
Jun '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
What's your view on the child that's born in the US, as part of birth tourism (yes, it exists,) immediately goes back to the home country of their parents, grows up there, and then comes back at age 18 to claim their US citizenship? I don't worry much about those children who grow up in Omaha, or New Orleans, educated in American public schools, but what about the kid who grows up in Yemen, and may not speak more than a dozen words of English? Is there any way to make those distinctions in law?
Aug '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
It is difficult to imagine that these participants have overlooked the nature of the problem presented by "Anchor Babies:" the flooding of the United States homeland, culture and political identity with people either presently ill-prepared to defend and participate in our national values or, in a large fraction of the cases (viz., "other than Mexicans" with terrorist bent), people who are ideologically hostile--even violently so--to our nation. To suggest that there is a significant problem "attracting immigrants to our shores" is obfuscating. Talented, lawful, foreigners hardly find it impossible to immigrate here. Further, not repealing the 14th Amendment because that would be procedurally ugly cannot be a matter of deep principle, could it? Would you argue against the repeal of the 18th by the 21st Amendment? The 14th Amendment found its purpose in checking the abuse of former slaves after the Civil War. The conditions existing at the time of the Dred Scott v. Sandford (1857) and rectified by the 14th Amendment do not obtain in the present invasion by illegal immigration. Because the current matter of anchor babies involves illegal--not legal--immigration, the case of U.S. v. Wong Kim Ark (1898) is not generalizable.
May '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
Richard Epstein and John Yoo, thank you so much for taking my question. I have to admit that I lean more towards George Will's view of the issue than Linda Chavez's. However, it seems that you are both on the other side of this one. On a further note, the WSJ today said that 1 in 12 babies born in the US in 2008 were born to illegal immigrants. I think those numbers are cause for concern.
I look forward to hearing others' responses. Always interesting here on Ricochet.
May '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
Recently on the podcast there was some talk of generating spurious policy proposals along the lines of Greg Gutfeld's Muslim-themed gay bar next to the ground zero mosque. This is a perfect opportunity for such a proposal. Don't rely on your own set legal norms and cultural assumptions when formulating laws regarding children of illegal immigrants. Look to the world for guidance.
May '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
I am of a mixed mind. It sounds reasonable to me that if you are not a citizen, and you don't plan to be one or move here, why should the fact your child is born here matter.
On the other hand. The USA is a new nation, brought forth upon the idea that *anyone* can be an American. We fought the war of 1812 over that principle.
I guess I want people to be born her to become productive, citizens and part of the big melting pot. I don't want them part of a welfare drain.
Maybe the solution is not less anchor babies, but less welfare.
Jun '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
This cuts very close to my view. I agree with John Yoo when he says:
I too see this as more of a political problem than a constitutional problem. Citizenship "by blood" would be antithetical to the American experience of liberty and freedom.
Aug '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
Re: Nested comments by Messrs Smith, Stevens and Yoo. It is certainly not a question of transmission by "blood" heritage that I am concerned about. Blood is not the issue. What is important to me is the continuity and smooth development of culture: political, economic and religious. No, it is not a seemly role of government to explicitly regulate things like religion; for instance, how many Syriac Christians, Buddhists or whatever, we award with citizenship. It should be up to the American people and the newcomers to tend to issues of cultural assimilation one personal choice at a time. But it is critical for government to regulate the rates of immigration from various places in the world so that assimilation can proceed in an orderly way. Unrestrained immigration from one nation, Mexico in particular, creates injustices for both Americans and for many categories of would-be immigrants from many places not happening to have a contiguous border with the U.S. Please do not twist the counter to Messrs. Yoo's and Epstein's opinions into a straw man of "blood" issues. I neither believe that, express that, nor--frankly--have I ever heard it advocated in my circles.
May '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
I think this train of thought has merit. Do you think the US is capable of voting for and enforcing restrictions on services to illegal immigrants?
Aug '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
Cindy
I think this train of thought has merit. Do you think the US is capable of voting for and enforcing restrictions on services to illegal immigrants? · Aug 13 at 11:23am
Certainly, dismantling the welfare state is an important component in protecting our border. It is also important for the reason that it is antithetical and destructive to a sound society. Dismantling the welfare state can only happen if churches and religious organizations are no longer hindered, I would even say harassed, by the Federal government, various activist organizations and the (anti-) cultural elites in their various fronts. It is not a question in my mind of which tactic to employ, stopping anchor babies or ending the welfare state: do both for heavens sake. Further, I do not ask questions whether, for instance, "...the US is capable of voting for and enforcing restrictions..." I am a doer. I am a scientist and innovator. I facilitate the bringing of ideas and things that once were not into existence; in the political realm, I make things that once seemed impossible, a reality.
May '10
Re: On Citizenship, Do Not Disturb the 14th Amendment
Cindy
I think this train of thought has merit. Do you think the US is capable of voting for and enforcing restrictions on services to illegal immigrants? · Aug 13 at 11:23am
No, and the reason is Plyler v. Doe, a case from 1982, where the Supremes prohibited school districts from discriminating against the children of illegals on "equal protection" grounds; one wonders why, if they knew the parents were illegal, they were still around filing lawsuits, but I digress.
The other interesting case is where automatic citizenship hurts the baby. If you are born to a Chinese mother here on a visit from the mainland, your baby is denied Chinese citizenship and has no right to attend Chinese schools when returned home. The parents have to find a private school.