Is the 14th Amendment misconstrued on birthright citizenship?

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.”

The first couple of Supreme Court cases to address the Citizenship Clause agreed with this interpretation. In The Slaughter-House Cases, which were decided in 1872, the Court noted (albeit in dicta) that “[t]he phrase, ‘subject to the jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” The Court was unanimous on this point. That interpretation was also the Supreme Court’s holding in the 1884 case of Elk v. Wilkins, in which a Native American who had been born on a reservation within the United States and later renounced his tribal allegiance claimed the benefits of birthright citizenship because he was subject to the jurisdiction of the United States through his tribe, which was a dependent sovereign. The Court rejected the claim, holding that the Citizenship Clause required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” The great constitutional law treatise writer of the era, Thomas Cooley, summarized the position this way: “subject to the jurisdiction” of the United States “meant . . . full and complete jurisdiction to which citizens [are generally] subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

That’s the history.

Anchor babies born in U.S. jumped 48% in 2009, a fact certain to fuel controversy over proposals to halt birthright citizenship

The total number of children in the USA born to illegal immigrants on U.S. soil jumped to 4 million in 2009, up from 2.7 million in 2003, a report released Wednesday estimates.

Those children — who are automatically granted U.S. citizenship — represent 5.4% of all children under the age of 18 in the U.S. That compares to 3.7% six years earlier, according to data from the non-partisan Pew Hispanic Center. That percentage will continue rising, as an estimated 340,000 of the 4.3 million babies born in the U.S. in 2008 alone — about 8% — came from illegal immigrant parents, the report says.

The study comes as some legislators, including Sen. Lindsey Graham, R-S.C., are calling for a revision of the 14th Amendment that grants citizenship to anyone born in the United States.

The percentage of native-born people in the U.S. has fallen for four straight decades, according to the U.S. Census Bureau. In 2008, 12.5% of the population was born outside the U.S., nearing the all-time highs of nearly 15% in the late 1800s.

"The share of the population that is white non-Hispanic is going to drop," said Jeffrey Passel, senior demographer of the Pew Hispanic Center. "The percentage that consists of immigrants and their children is going to increase."

Bob Dane, a spokesman for the Federation for American Immigration Reform, which wants lower levels of legal and illegal immigration, said automatic citizenship for children born in the U.S. is one of the main magnets for illegal immigration.

Dane said many illegal immigrants are searching for jobs. He said many others come here to have a baby who is entitled to a wide array of government benefits and can eventually help the parents become citizens as well. He calls the practice a "corruption of the rule of law."

Republican pols posture with amendments, then do nothing

Last Friday, Sen. Lindsey Graham (R-S.C.) let the cat out of the bag: his sudden crusade to reform birthright citizenship is directly related to his need for political cover on amnesty for illegal immigrants.

"Yeah, I think it's fair to say that I need to go home to South Carolina and say: listen, I know we're all upset that we have 12-14 million people illegally, " Graham told National Review's Daniel Foster. "I'm going to have to be practical. We're not going to deport or jail 12-14 million people." Graham's practical solution is the same old "comprehensive immigration reform," the logic of which is that it would not be amnesty for grand theft auto if the perpetrator got to keep the car in exchange for paying a fine and promising to read the owner's manual.

Of course, Graham already gave away the game when he entertained a constitutional amendment to clarify what the 14th Amendment says about birthright citizenship. The New Republic's Jonathan Chait recently snickered at the number of conservative constitutional amendments floating around that have been endorsed by "mainstream Republicans," but the joke is really on conservatives: a no-hope constitutional amendment is the usual way a GOP politician pays lip service to some conservative concern he plans to do nothing about.

A classic example is the antiabortion human life amendment. At its peak in 1984, it got 49 votes in a Republican-controlled Senate with a sympathetic, articulate pro-lifer in the White House -- 18 votes short of passage, two shy of a simple majority. Fast forward more than twenty years to the federal marriage amendment. With a 10-seat Republican majority in the Senate and a sympathetic if inarticulate president, the gay marriage amendment failed 49 to 48.

What do conservatives have to show for the Republicans' election-year promises to support the human life amendment and the federal marriage amendment? Absolutely nothing, unless you count 37 years of Roe v. Wade and a Supreme Court that is within Anthony Kennedy's vote of issuing a similarly sweeping decision redefining marriage.

In Texas, 60,000 anchor babies born each year to illegal aliens

As Republican members of Congress press for changes to the 14th Amendment of the U.S. Constitution, preventing automatic citizenship for babies born to illegal immigrants, opponents insist the debate is not really about babies.

Instead, they say it is about politics and votes – not fixing the immigration system.

Still, the debate could resonate in Texas, where not only 1.5 million illegal immigrants are estimated to reside but at least 60,000 babies are added to their households annually.

Parkland Memorial Hospital delivers more of those babies than any other hospital in the state. Last year at Parkland, 11,071 babies were born to women who were noncitizens, about 74 percent of total deliveries. Most of these women are believed to be in the country illegally.

Ann Coulter explains how anchor babies, once scorned in U.S. law, acquired the power to veto American tradition and choices

Democrats act as if the right to run across the border when you're 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court's Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves -- many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: "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 drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)