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The Fourteenth Amendment Mess By: Robert Locke
FrontPageMagazine.com | Monday, September 09, 2002

The Fourteenth Amendment (1868) has become the key Constitutional issue of the immigration mess. The relevant section 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 problem is that this has been misinterpreted in recent years to mean simply that anyone born in the U.S, under any circumstances, is an American citizen. This is neither the original intent of the law nor the way it was interpreted by the courts in subsequent decades. Some Americans speak of birthright citizenship as if it were an immutable law of nature. It is not, and most other nations do not, in fact, recognize it. It is only a bad habit that could be broken with a simple Executive Order.

According to estimates, some 200,000 so-called anchor babies are born in the United States every year. Once a mother has birthed a child on American soil, she can then seek to obtain citizenship for herself on the strength of the family-reunification laws. Even before this happens, she is very hard to deport, as the mother of an American, and the full panoply of welfare benefits is available to her, as is affirmative action if she is a member of a racial minority. "The situation we have today is absurd," alleges Craig Nelsen, director of Friends of Immigration Law Enforcement, a group of attorneys and immigration experts that is trying to do something about the problem. "There is a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. This was not the intent of the Fourteenth Amendment; it makes a mockery of citizenship."

The war on terror has forced this issue to a head, though its widest application will of course be elsewhere. In a court action with wide-ranging implications, FILE has filed a motion in U.S. District Court asking to intervene in the case of a U.S.-born Saudi Arabian Taliban fighter. The group argues that the captured fighter, Yaser Esam Hamdi, is not a U.S. citizen despite his Louisiana birth.

Judge Robert G. Doumar, presiding in this case, must now decide whether to allow FILE to make the argument in court that Hamdi's birth to Saudi nationals in the U.S. on temporary work visas does not grant Hamdi automatic U.S. citizenship. According to FILE, the citizenship clause of the Fourteenth Amendment does not mandate the current practice of granting birthright citizenship to children born on U.S. soil to temporary workers, illegal immigrants, and tourists.

In an August 16 letter to Solicitor General Ted Olson, whose office is handling the case, the group asked the Justice Department to declare Hamdi a Saudi national, asserting that he is "not an American in any real sense of the word." The letter argued that Hamdi's case — likely to end up in the Supreme Court — provides a "historic and excellent opportunity...to address the true meaning and intent of the citizenship clause."

The key to undoing the current misinterpretation of the Fourteenth Amendment is this odd phrase "and subject to the jurisdiction thereof." The whole problem is caused by the fact that the meaning of this phrase, which was clear to anyone versed in legal language in 1868, has slipped with changes in usage. Fortunately, there is a large group of court precedents that make clear what the phrase actually means:

  1. The Fourteenth Amendment excludes the children of aliens. (The Slaughterhouse Cases (83 U.S. 36 (1873))

  2. The Fourteenth Amendment draws a distinction between the children of aliens and children of citizens. (Minor v. Happersett (88 U.S. 162 (1874))
  3. The phrase "subject to the jurisdiction" requires "direct and immediate allegiance" to the United States, not just physical presence. (Elk v. Wilkins 112 U.S. 94 (1884))

  4. There is no automatic birthright citizenship in a particular case. (Wong Kim Ark Case, 169 U.S. 649 (1898))

  5. The Supreme Court has never confirmed birthright citizenship for the children of illegal aliens, temporary workers, and tourists. (Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982))

There are other cases referring to minor details of the question.

In essence, "subject to the jurisdiction thereof" meant, at the time the amendment was written, a person having a reciprocal relationship of allegiance and protection with the United States government. It was thus understood not to apply to persons whose presence in this country is transitory or illegal. For details of the evolution of this phrase and its interpretation by the courts, see this page on FILE's web site. The key question that those who favor the contemporary misinterpretation of this phrase cannot answer is, why is the phrase there, if it means nothing, which is what their interpretation implies. Logic implies that it would only have been inserted if it modified the meaning of the amendment, which it does: by limiting the scope of persons to which it applies. The debate — adequately settled, in my view, by the precedents named above — can at most be over who is "subject to the jurisdiction thereof," not over whether this phrase means anything.

That the Fourteenth Amendment does not grant automatic birthright citizenship is also made clear by the fact that it took an act of Congress in 1922 to give American Indians birthright citizenship, which would obviously not have been necessary if they had it automatically just by being born here. The courts have also long recognized an exception for the children of foreign diplomats, which exception would be unconstitutional if the Fourteenth Amendment granted automatic birthright citizenship to everyone.

Hopefully, the Supreme Court will clear up this issue. But this is not the only possible way to fix the problem, for the Fourteenth Amendment, in Section 5, explicitly delegates to Congress the right to legislate how the provisions of the amendment are to be applied. So Congress could legislatively undo this misinterpretation. (Of course, this might force the issue to court again if it were challenged on Constitutional grounds, but it would do so with an even stronger case, relying on less confusing language and backed by Congressional authority.) A number of bills to conform the application of the Citizenship Clause to its original intent have been introduced in the House of Representatives. The most recent is H.R. 190, introduced by Rep. Robert Stump of Arizona on January 3, 2001. H.R. 190 would deny citizenship to the U.S.-born child of "a mother who is neither a citizen or national of the United States nor admitted to the United States as a lawful permanent resident." H.R. 190 would render into modern language considering such a child as born subject to the jurisdiction of his parents' country and a citizen of that country and not of the United States.

With any luck, this absurd loophole will thus be closed one way or another. What this problem points to is the larger problem we can call "citizenship inflation:" the tendency to debase and cheapen American citizenship by handing it out casually while draining it of meaning. I am just waiting for some fool — Ben Wattenberg? — to announce that everyone on Earth has an inalienable right to be an American citizen. Being an American used to be understood to have a real and substantial significance, as well it ought to, given the moral obligations one has as the citizen of a democracy. Now it has become a parody of the welfare state: the ultimate handout.

Note: This article was adapted from materials provided by NumbersUSA, Vdare, FILE, and others. Special thanks for included material to Howard Sutherland.

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