Mq, do you have any thoughts on the US switching from birthright to heritage citizenship? These are editorials from the Washington Times and Post. The Post finds the notion "ugly."
Birthright citizenship
TODAY'S EDITORIAL
November 13, 2005
Some Republican lawmakers are considering ending birthright citizenship as we know it. The intriguing legal argument they tout is that the United States has been misinterpreting the Fourteenth Amendment for over 100 years. As a consequence, they argue, the United States awards citizenship to those whom the amendment's framers never intended -- and indeed, whom in some cases, common sense suggests we shouldn't -- like terrorists or agents of foreign powers. Then there is the question of illegal immigration. With a Rasmussen Poll indicating that half of Americans think children of illegals should not automatically receive citizenship, the idea could well grow legs.
The predominant interpretation of the citizenship clause of the Fourteenth Amendment holds that anyone born on U.S. soil is a citizen, except the children of diplomats. But six weeks ago, in testimony before a House Judiciary subcommittee that Hill staffers have since been touting, John C. Eastman, a law professor at Chapman University and a fellow of Claremont Institute, argued that the prevailing interpretation gives more weight to place of birth than originally intended and should be changed.
"Birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate," he argues, calling birth and jurisdiction "a floor for citizenship." And indeed the plain language of the clause contains items for both birth and jurisdiction: "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."
But since the 1898 Supreme Court ruling, United States vs. Won Kim Ark, American courts have elevated birthplace over jurisdiction and allegiance. This has persisted to the present, to the point that last year, in Hamdi v. Rumsfeld, the Supreme Court granted full citizenship protections to Yaser Esam Hamdi, a Taliban fighter captured in Afghanistan who happened to have been born in Louisiana while his Saudi father had been working on a project for Exxon.
What would an end to birthright citizenship mean in policy terms? For one, it would obviate situations like Hamdi v. Rumsfeld, where an enemy fighter successfully claims constitutional protections by way of his birthplace. In that sense, it could reduce some terrorism vulnerabilities. But the more immediate and dramatic effect would likely be on foreign nationals who travel to the United States to give birth -- including and perhaps especially illegal aliens.
The illegal-immigration incentive that so-called "anchor babies" create weighs heavily on Republican lawmakers' minds. Subordinating birthplace to jurisdiction could reduce that incentive.
There are legitimate objections, however, that we expect the proponents to address in the coming months. For one, can it be done without a constitutional amendment? Rep. Jeff Flake, Arizona Republican, thinks it can, but it's not clear that this is so. Should the United States follow what amounts to a European model of hereditary citizenship? The riots in France are instructive. And third, will this proposal break up families already in the United States?
The fundamental question is whether the benefits of U.S. citizenship should accrue to enemies of the United States, breakers of our immigration laws or those whose primary allegiance is to other powers. On all three counts, the answer seems to us to be no. In the most dangerous cases, like those of Mr. Hamdi and others who wish ill upon America, allegiance would be a better proxy than birth for people deserving of citizenship. But we await the debate, which should give us the details on which to decide.
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Citizens, All
Saturday, November 12, 2005; Page A24
REP. TOM TANCREDO (R-Colo.) has a bold idea to stop illegal immigration: Deny automatic citizenship to the children of undocumented immigrants. "There is general agreement about the fact that citizenship in this country should not be bestowed on people who are children of folks who come into this country illegally," he told the Washington Times. General agreement? Perhaps among Mr. Tancredo's friends in the House but not among the framers of the 14th Amendment. Indeed, any such modern consensus would have a small problem in the text of the Constitution, which is, inconveniently for anti-immigrant demagogues, not subtle on the point. The 14th 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." Not "all persons except children of illegal immigrants," not "all persons except those Congress exempts in moments of nativism." All persons.
How does Mr. Tancredo propose to get around this language? Like diplomats, illegal immigrants are not truly subject to American jurisdiction, he contends, and their children therefore don't satisfy the constitutional test for birthright citizenship.
The Supreme Court rejected this thesis more than a century ago. "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States," the court wrote. Diplomats, as a consequence of the lack of jurisdiction Mr. Tancredo would extend to aliens, cannot be arrested or charged with crimes. Is that what Mr. Tancredo has in mind for illegal immigrants? Members of Congress ought not follow him on this ugly and fruitless path.
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