Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Interpreting the Fourteenth in the Context of Chinese Birth Tourism
Amendment XIV: Section 1. 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.
“Anchor babies” and “birth-right citizenship” have been the topic of a great many of our political discussions lately — when we’re not talking about Donald Trump. Though we tend to concentrate on illegal immigration from Latin America — and the ethics and legality of deporting entire families once some of their children have been “born American” — This completely ignores another part of the “birth-right citizenship” phenomenon.
Denver talk-radio host and freelance columnist Mike Rosen has long articulated the most convincing interpretation of the Fourteenth Amendment in the context of Chinese “birth tourism.” From his 2011 Denver Post column on Birth Rights and Wrongs:
Unlike illegal immigrants who cross our southern border, these pregnant Chinese women don’t enter our country illegally. They come on tourist visas, stay for a few months and then most go home to China with their newborns who have the option of returning someday as full-fledged American citizens, entitled to all the rights and benefits that includes.
Right now, today, there are “American citizens” being raised in China, by Chinese parents, speaking only Chinese, effectively as Chinese citizens, due to this senseless misinterpretation of an amendment intended to confer rights and immunities to freed slaves who, significantly, had never known any other national affiliation. More from Rosen:
The amendment was written in 1866 following the Civil War and ratified in 1868. In addition to punishing the confederate rebellion, it was intended to abolish the legacy of slavery. Section 1 effectively granted citizenship and all constitutional protections to former slaves “born or naturalized in the United States, and subject to the jurisdiction thereof.” That key phrase doesn’t mean subject to our laws; it refers to persons who owe no allegiance to another country [emphasis mine]. That is, who were not citizens of another country or children of citizens of another country.
Consistent with that precise intent, the same Congress that wrote the 14th Amendment passed a civil rights law, also in 1866, restricting American citizenship to those born here “and not subject to any foreign power.” Rep. John Bingham of Ohio, the author of the 14th Amendment, confirmed “that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
Citizenship isn’t a matter of the geographical location of one’s birth place. It’s a matter of allegiance. The babies of Latin American illegals have no more right to American citizenship than the babies of Chinese tourists. The current interpretation of the Fourteenth Amendment is inane.
Published in Domestic Policy, Foreign Policy, Politics
There is another important aspect to birthright citizenship. It acts like a statute of limitations or adverse possession rule with respect to citizenship. It is a practical matter of proof.
Most people are familiar with the statute of limitations. “Adverse possession” is a similar principle in real property law, under which open occupation of land for a period of years vests title in the occupant. (There are some technical requirements not pertinent here, and the law of adverse possession varies from state to state.)
Imagine if my citizenship depended on the citizenship, or legal residence, of my parents, whose citizenship depended on my grandparents’ citizenship, and so on. The difficulty of proof would compound with each generation.
This is a serious practical problem, which I have not previously considered in connection with the “birthright citizenship” debate. My personal preference has been for a rule based on the mother’s status — e.g. a person born in the US is a US citizen if his mother is a citizen or legal resident. Over time, this rule would create a problem of proof as discussed earlier.
As many of you know, I am a litigation lawyer, so I can tell you that in our legal system, the thing that matters is not “the truth” in a cosmic sense — which is often unknown — but rather “what you can prove.” I don’t like the idea of a citizenship rule that creates serious problems of proof.
The problem identified in my #62 above could be solved by careful drafting. Rather than focusing on the mother’s citizenship or legal residence, the exception to birthright citizenship could be something like: “except any person born to a mother who traveled to the United States illegally, or was present in the United States temporarily, is not a citizen of the United States.”
Yes, I’m well aware of the issues, and share your concern about the risks.
As far as the likelihood for it succeeding, however, I think it’s high, as this same tactic has been done many other times in altering the meaning of the Constitution.
“Arms” in the original Second Amendment was understood to mean military-grade weapons. Now it means anything but military-grade weapons. Without Congress having done a thing. If the courts have the power to alter common-law meaning, then Congress clearly does.
Alternatively, Congress could label illegal immigrants “invaders”, who were clearly understood to not be under US jurisdiction. Gets to the same point…
I think my proposal is cleaner though.
Oooh, Starship Troopers! The great book, not the horrible movie.
For those who haven’t read it, in Starship Troopers, Heinlein posits a “Terran Federation” containing citizens and residents. Everyone is a resident, and has the same rights as a citizen with three exceptions. Only a citizen can vote; only a citizen can hold public office; and only a citizen can teach the mandatory high school course in “History and Moral Philosophy.”
Citizenship is earned by voluntary service, usually military.
Hamilton, Federalist Papers 84:
The burden of proof is improperly reversed in your argument. There is not one single Supreme Court precedent in favor of “birthright citizenship” for illegal aliens or persons who are here on a temporary basis (e.g. diplomats and tourists). “Birthright citizenship” is an unlawful imposition on the American people and not a legal principle derived from the 14th Amendment.
That is not just my opinion. See the law review article from 2010 that I quote extensively from in my post, A Challenge to Professor Yoo.
Professor Lino Graglia of the Univ. of Texas Law School deals with the 14th Amendment citizenship clause and finds no support for “birthright citizenship.” He points out that the citizenship language included in both the 1866 Civil Rights Act and the amendment comes from the same senator who is rejecting citizenship for someone who owes his allegiance to another country and consequently for a minor child of that foreign citizen, whose status is derivative from that of the parent. His analysis is too detailed for me to fairly summarize here. Read it for yourself through the link above.
There is no need for an amendment. All we need is for people to disregard the dictum that Justice William Brennan slipped into a footnote in Plyler v. Doe, 457 U.S. 202 (1982) that the children of both legal and illegal aliens in the U.S. were citizens.
Agreed, but as a practical matter, I think this is a low bar. In the first place, there probably are a very small number of people born in the US who couldn’t prove that either of their parents is a US citizen, through either a passport or a birth certificate.
To get a passport, for instance, you have to prove citizenship:
To get a Social Security card the requirements are similar:
I don’t think the additional burden would be that high in the great majority of cases.
His argument falls apart here:
Birthright citizenship was clearly understood to apply to resident aliens, and this matter was discussed extensively in the debates over the matter (link to which posted in a comment above).
You’d think a law professor could at least do his homework on the matter. I did.
As far as Brennan’s footnote goes, he simply came to the same unfortunate conclusion that I did after reading the debates.
When looking back to the drafting of the amendment for meaning, we must imagine ourselves in the place and time of those drafters and the situations with which they were dealing, and not the problems of our time, which they could not necessarily envision, and so did not enter into their choice of words, and on the subject of which they have no wisdom to offer.
The amendment had to accomplish certain goals. It had to ensure that all the freed slaves were citizens. It had to exclude the majority of Indians who, in 1868, were mostly living under their own sovereignty. It had to include the thousands if not millions of children of non-citizen immigrants who were born in the United States. It had to exclude children of people who had no intention of subjecting themselves to the jurisdiction of the United States, namely, ambassadors and the like.
I agree that our country is better off if today’s children of illegal immigrants and foreign tourists are not citizens. I support a law or constitutional amendment to say so. What I do not support is the Supreme Court determining in activist fashion that the constitution means whatever they say it means. I don’t like it when “they” do it, and I don’t want us to do it.
Well put.
Alinsky’s Rule 4: Make the enemy live up to its own book of rules.
Tourists and people present in the country in defiance of our law would seem to qualify as having no intention of subjecting themselves to our jurisdiction, much like ambassadors.
I don’t know the legal niceties but there are respectable voices on both sides; it is not clear cut. It is much less clear than the two wrongly decided recent Supreme Court cases. John Yoo lacks credibility on this one because of his extreme bias.
The Constitution is not clear but there seems to be precedent and tradition behind birthright citizenship for illegals. So fix it.
But in the case of non-citizen marriage, the child’s entrance is legal. So, in truth, it wouldn’t be a true “anchor” situation.
The dispute over anchor babies, is that the parent entered illegally, by current law.
If a spouse was a permanent resident, with a green card, they could petition to bring in whomever, and that would be approved or disapproved.
If disapproved, should those elderly parents from a foreign land be brought to the US under cover of darkness to reside illegally in the US?
Then it becomes our book of rules, too. I don’t want to be an Alinskyite. I want to save our institutions.
and that would not require a Constitutional Amendment, right?
The hitch seems to be, that when the Amendment was written, our country had open borders. What we need to do is clear things up to define ‘invader’ in its modern 21st century context–uninvited guests. Yes?
I have to agree with you here. This problem needs to be solved by defining and creating law or an amendment that follows the provisions of the Constitution.
They’re not just coming from poor or former communist nations, and not all coming to emigrate. I’ve met foreigners from other well-off Asian countries who timed their wives’ pregnancies so that some of their kids would be born while they were working in the U.S. They themselves didn’t intend to emigrate to the U.S., they were most interested in making it easier for their kids to get into U.S. colleges.
Yes, well, they forgot to account for the tax hazard, I guess.
The work “absolute” has a definition which seems to have eluded you. So while you argue that shouting fire in a crowded theatre is somehow protected speech, I’ll believe the phrases “there are no absolutes in the constitution” and the “living constitution” as understood by you as well as the left wing loons do not reside in the same universe.
I use this one. What do you use?
So “no law” means “no law”, not “any reasonable restriction”.
This is an easily handled case. No prior prohibition, but if you create a panic and people get hurt, you’re responsible for your actions.
The great Progressive innovation in law is that a thing must be illegal if there’s even a remote chance of harm to someone. It’s what’s led to our current totalitarian legal system. It’s certainly not consistent with the Constitution.
I don’t think so. It’s a common law definition, and Congress has the power to change the common law. Obviously that’s a loophole to drive a truck through, but we might as well use it.
Exactly.
This is an easily handled case. No prior prohibition, but if you create a panic and people get hurt, you’re responsible for your actions.
The great Progressive innovation in law is that a thing must be illegal if there’s even a remote chance of harm to someone. It’s what’s led to our current totalitarian legal system. It’s certainly not consistent with the Constitution.
This is a ridiculous argument akin to arguing the civil war was not about slavery. Even the absolutist recognize limits on speech. The example I have seen are shouting fire in a theatre – say nobody actually got hurt in the stampede. So no harm no foul? BS.
The “great progressive innovation in law…” is not at all where they are coming from. Rather in some cases it may be the excuse. They come for control – plain and simple. Her Highness Hillary said it best to the black lives matter guy – she doesn’t believe in changing hearts she believes in changing law – ultimately backed by force of arms.
This has been interesting to me though and I’m guessing the fault line is the difference between a conservative (me) and a libertarian (you). But, just a guess.
What’s lead to our current mess is us.
I don’t think you understand the example you’re giving. Yelling “fire” in a theatre is not illegal: there’s no prior restraint. The speech isn’t what’s illegal, it’s causing the panic that’s illegal, or causing some other harm.
You can stand in an empty theatre and yell “Fire” all day long if you want. It’s not illegal.
Slander? Penalties for which are grounded in common law? Subject to review and refinement by Legislature? Leading to variable colorations on the meaning of the First Amendment?
Same thing. You’re being punished for causing harm. Punching is not illegal: punching someone in the face is illegal because you’re harming them.
You’re free to say something: you’re not free to harm someone.
A very libertarian view of things: it’s called Conservatism in America.
The point is that what the 1st Amendment means is subject to change by the Legislature, without adding a new amendment in some cases. The definition of “harm” is a qualifier on the meaning, in this case. Since judicial legislation happens, there is an argument to be made that a better habit of our country is to let the Congress reinterpret the language in the Constitution rather than grant 5 SC Justices that prerogative.
This is the reality we face. Justices legislate, Ok. You may wish they didn’t, but given that they do, how can we preempt them? You can try to convince the public that they shouldn’t, but if they still do, how should conservatives/libertarians react? There is a strong argument that ceding Congress the role of reinterpretation is a safer, more representative corrective. If for no other reason than that it defangs SCOTUS a bit.
I don’t know where you got this idea.
Would that the courts defended the rest of the Constitution from the legislature as diligently as they do the 1st.
Sadly, the Progressives have largely decided to abandon the Constitution, except when it’s convenient. Since both the legislature and the courts are run by Progressives, and the voters keep electing them, there’s been no-one to defend it.
I’m not sure what the underlying point of your distinction is, but it sounds like a tautology to me. You can cause as much harm by punching someone in the face during a boxing match as you can on the street. I can destroy your business by printing a truthful article about how you didn’t bake a cake for a gay wedding.
On a college campus where you can be punished for saying “America is the land of opportunity” they would claim that the statement causes harm (a microaggression) to members of minority groups who don’t succeed very much. Criticizing the government causes harm in North Korea, enough so that it can lead to the death penalty.
I understand perfectly well as did you and you chose not to answer my question as asked as part of no harm no foul. And, instead of answering my question you made up a new one that i did not ask. How about hiring someone to kill someone. Is that illegal or merely free speech until someone’s dead?
We’re getting into 1st Amendment law 101, here. It’s a fascinating topic, I highly recommend it.
But I don’t have time for it. :)