Birthright Citizenship: A Matter of Jurisdiction

I have a pop-quiz for you. Who said, “Give me liberty, or give me death!” Right. Patrick Henry. How about this one, “Mr. Gorbachev, tear down this wall!” I’m sure you know that Ronald Reagan made that challenge. Finally, who recently said, “Being an American is not a matter of blood or birth. It’s a matter of faith.” That statement was made by Barack Obama during a speech about immigration reform.

When it comes to citizenship and who can be an American, is it a matter of faith, as President Obama has stated? Or is it more accurate to say that American citizenship is a matter of settled law? The U.S. Constitution states in Article 1, Section 8, that Congress (the lawmaking branch of the three branches of government) has the authority to make laws governing citizenship. At the time the Constitution was written, the Framers were just coming to terms with all the details of forming a new nation. They all had been Englishmen before the Revolution, but now, they were Americans. The Founders had to settle the question of whom else could become an American.

Commentators and pundits argue that any child born on American soil, regardless of their parents’ immigration status, should be granted American citizenship as a right of birth, or “birthright citizenship.” The judicial branch in what are the three branches of government, have gone along with this, establishing a precedent for continued birthright citizenship. It is clear that birthright citizenship is an attractive benefit, as so many illegal alien mothers cross America’s borders just to check in to an American hospital in time to give birth. These newborn babies are given automatic citizenship, and are an “anchor” for the family’s future in the United States.

The Civil War was fought, in part, over the great question of slavery. Slaves were not considered fully human by many of their captors, let alone American citizens. After the slaves’ emancipation, there were some who would not recognize their citizenship, nor the citizenship of their offspring. This was an argument that had to be settled. The question of who was entitled to American citizenship was addressed in the Fourteenth Amendment to the Constitution.

The Civil Rights Act of 1866 was passed to solidify the rights of freed slaves. It begins, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…” The phrase “not subject to any foreign power” is extremely important when examining the issue of American citizenship and particularly birthright citizenship. The language clearly points to allegiance to America as the key to citizenship by right of birth.

The Fourteenth Amendment begins, “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 portion of that statement that is critical, is the clause “…and subject to the jurisdiction thereof…” It is clear that only those who are subject to the jurisdiction of the United States of American are to be considered citizens.

Those who disagree with birthright citizenship argue that the Fourteenth Amendment requires at least one parent to be “subject to the jurisdiction” of the United States in order for the child to be an American citizen. The child himself is subject to his parents, so if the parents are citizens of a foreign country, and have entered the United States illegally, how can the child be considered an American by birth? The clear language of the Fourteenth Amendment nullifies the idea of birthright citizenship.

If the Constitution is clear about American citizenship, then how did birthright citizenship become a precedent? In 1973, the Supreme Court heard a New York case, Sugarman vs. Dougall. The state of New York fired four resident aliens from government jobs because they were not American citizens. The four workers sued, and the Supreme Court ruled that lack of citizenship was not enough reason to descriminate against the workers.

In 1982, the Supreme Court struck down a Texas law that banned illegal alien children from attending the public schools. The state was being bankrupted from the cost of educating so many children who were not living lawfully in Texas. The Court sided with the illegal aliens. Subsequent and similar rulings have led to the practice of conferring American citizenship on any child born on American soil, regardless of the allegiances held by the parents of that child.

Birthright citizenship and “anchor babies” are a hot topic in today’s news. Liberals and Conservatives can disagree about birthright citizenship, but the Constitution is clear about who is a citizen. Only those born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens. Until the Congress passes a law to the contrary, any rulings by the Supreme Court, or any other court, are in violation of the Fourteenth Amendment.

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