The Republican platform calls for a constitutional amendment denying the US-born children of illegal immigrants automatic citizenship. In the media and among immigrants' rights organizations this proposal was labeled hard-hearted at best and cruel at worst. In fact, it makes perfect sense, and it is exactly what the authors of the 14th Amendment to the Constitution had in mind.
The children of illegal alien parents should take the citizenship of the mother, until such time as the child may independently qualify as a US citizen under our regular immigration rules. Amending the Constitution is probably not even necessary, because the Constitution already permits Congress to define certain classes of people ineligible for birthright citizenship, such as children of diplomats and certain transients.
At the time of ratification of the 14th Amendment in 1868, immigration to the United States was virtually unrestricted by Congress. Residency was regulated by the states through control of property ownership and through health and safety rules. A person declared ineligible to reside in a state could not obtain citizenship. Moreover, based on the language of the amendment and the congressional debate leading up to ratification, it seems evident that its authors clearly intended that there be exceptions to the rule that citizenship be an automatic result of birth on American soil.
1. The immediate intent of the 14th Amendment was to clarify the status of the freed black slaves. The amendment was introduced in 1866, just one year after the end of the Civil War. Until that point, black slaves were legally considered only three-fifths of a human being and the courts had consistently upheld their status as property. Given these circumstances, a constitutional amendment guaranteeing full legal recognition of the freed slaves was essential.
2. The amendment reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ...." (emphasis added). The present tense is significant. All other amendments are worded in the future tense, signifying the authors intended them to apply in perpetuity. That this one is stated in the present tense is an indication that the authors intended it to apply to a specific group of people at a specific point in our history.
3. The 14th Amendment does not simply say that all persons born in the US are automatically citizens. It adds the important caveat, "and subject to the jurisdiction thereof."
The definition of "subject to the jurisdiction" has been debated at length by legal scholars. In several Supreme Court decisions, most notably Minor v. Happersett (1874) and United States v. Cruikshank (1875), the definitions of citizenship and jurisdiction are spelled out. In Minor the court noted a distinction between citizens and "foreigners" when conferring citizenship on children. In Cruikshank the court ruled that citizens are persons who "have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights."
Illegal aliens do not meet the standard of what it means to be subject to the jurisdiction of the US. Jurisdiction requires mutual consent. Illegal aliens, by definition, have not submitted themselves to dominion of our government or demonstrated any allegiance to it, nor have they been recognized by this nation as being a legitimate part of our society or requesting its protection. Therefore, they must be treated differently from citizens and legal residents in the matter of birthright citizenship. (Similarly, the child of the casual visitor who gives birth while here, does not meet the requirements for citizenship.)
4. If there is any further doubt of the intent of the 14th Amendment, it is useful to look at what the authors themselves had to say. Sen. Jacob Howard of Wisconsin, a coauthor of the citizenship clause, could not have been any more clear when he spoke on the floor of the Senate on May 30, 1866: "Every person born within the jurisdiction and the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens ... but will include every other class of persons."
In an age of extreme mobility, ideas about national identity and citizenship must be reexamined. What was not a concern 130 years ago, is today an important global issue. More than 100 million people worldwide reside outside the country of citizenship, and billions travel beyond their national borders each year. These numbers are likely to grow geometrically in the coming years. Under the circumstances, it is crucial that we return to the original intent of the 14th Amendment and limit birthright citizenship to the children of citizens and legal immigrants.
*Dan Stein is executive director of the Federation for American Immigration Reform.