Recently my sister sent me an article by James Walsh on birthright citizens. While I was researching this topic, I came across an article in the Huffington post, which stated that Senator Mitch McConnell felt that there was no harm in looking into why foreigners were coming to the US for the express purpose of having their babies on US soil so that the babies could be US citizens under the 14th Amendment of the US Constitution. Was this a big problem? I did not know. Recently, James Walsh commented that, “The nation looks to the U.S. Congress to remedy fraudulent naturalizations and the Supreme Court to clarify the jurisdictional question of automatic birthright citizenship”. George Will wrote in The Washington Post that, “If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration — and had anticipated huge waves of illegal immigration — is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.” Both James Walsh and George Will are caught up in the phrase “jurisdictional question of automatic birthright citizenship” (and in some fashion that naturalization is handed out like candy to unqualified legal permanent residents). So what does the phrase ‘subject to the jurisdiction’ mean? For that we have to examine some principles of US law. United States law combines jus soli, meaning citizenship by birth in a nation’s territory, and jus sanguinis, meaning citizenship by descent, i.e. parents who were citizens. Before the Declaration of Independence in 1776, residents of the 13 original colonies were British citizens. After Independence, these persons could choose to remain a British subject or become a citizen of one of the 13 States. At this point there was no US citizenship by birth. The original Constitution only said that the American President had to be a citizen and ‘natural born’. But the terms ‘citizen’ and ‘natural born’ were not defined anywhere. Recently, the issue of ‘natural born’ featured prominently as an issue for both Presidential candidates in 2008. Senator McCain was born in the Canal Zone in Panama of US citizen parents. In 2008, a legal scholar Professor Gabriel J. Chin argued that McCain did not become a citizen until a year later in 1937, when Congress passed a law to confer US citizenship on Canal Zone born children. Until 1937, these children fell into a gap in law conferring US citizenship on children born to US citizen parents. Similarly, President Obama was also thought not a US citizen for failure to produce his Hawaiian birth certificate. But this blog is about who has birthright citizenship. Clearly from these examples, you have to be born on US soil and territory to be a US citizen, to be ‘natural born’. The 14th Amendment, Section 1 states, “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”. Until the 14th Amendment, slaves and their descendants were not US citizens; American Indians were still held to be non citizens because they were born in territory that was not subject to the jurisdiction thereof. This anomaly in the law was changed by subsequent law. So now a Native American becomes a US citizen at birth. Persons born in Puerto Rico, Gaum and US Virgin Islands are also citizens. Only birth in American Samoa and Swains Islands does not confer US citizenship, although these persons may call themselves US Nationals! In the last few decades of the nineteenth century, Chinese born immigrants, who were legal permanent residents (now commonly called ‘green card’), were ineligible by law to become US citizens. In US v. Wong Kim Ark, in a decision after the 14th Amendment was passed, the US Supreme Court held that Ark was a US citizen because he was born in San Francisco and had not “either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom”. In 1985, authors Peter H. Schuck and Rogers M. Smith, wrote that the phrase in the 14th Amendment ‘subject to the jurisdiction thereof‘, should be re-interpreted to exclude children of persons who did not have green cards. In other words, children of persons who were here legally in the US on a non-immigrant visa, and those who were here illegally, should not be able to become US citizens by virtue of their birth in the US; they were not subject to the jurisdiction thereof, and they owed foreign allegiance. The New York terrorist attacker Faisal Shasad stated when he took the oath of citizenship, he did not mean it–he said it for convenience!!! While I, as a naturalized citizen, recoil at that statement, as an immigration attorney, I am even more incensed! His statement casts a dark shadow over all naturalizations. We should probably revisit the phrase in Ark, done anything to renounce his allegiance…’, when we try to re-evaluate the tenets of birthright. My point is to all the lawmakers and naysayers who want to amend the 14th Amendment by restating the phrase ‘subject to the jurisdiction thereof‘. Don’t throw out the baby with the bathwater.
See you in my next post.
Nalini S Mahadevan, JD, MBA
Attorney at Law
Copyright 2010. All rights reserved.
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