Do I wish a Trump congress and senate would change that "law" - of course. Seems like just another loophole to the generosity of the USA. Prof. Eastman argues that it already is law - the Constitution's 14th Amendment. There are two clauses for natural born citizenship - 1. Born in U.S.A. and 2. Subject to its jurisdiction. He argues there's a reason for the two clauses: they mean different things.
Some have the idea that the writers of the Constitution weren't writing law, but a framework for law, so that if a clause or two is inconvenient or unclear, then it can be ignored, which is what X's reader context, and the general acceptance of anchor babies as citizens, does.
It's past time to get this straightened out. A clarification law doing so is not unprecedented. Current momentum of accepting anchor babies as citizens may keep the judiciary from ever clarifying the 14th Amendment without Congressional assistance.
Federalist Paper #42, written in 1788, exposes some of the reasons to add a clarifying law for citizenship. It's actually rather funny how Madison points out the huge flaws in the original definitions of a citizen. founders.archives.gov
In 1790, the Naturalization Act was passed that did clarify that children of citizens could be born outside of the U.S. and be considered natural born citizens.
No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were “natural born Citizens.” The Naturalization Act of 1790 8 provided that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .” 9
The Naturalization Act of 1790 gives one an idea of what may have been originally contemplated for birthright citizenship, since this was written so close in time to the drafting of the Constitution. Again though, there's ambiguity. Does "resident" mean the same as "naturalized" - as opposed to someone who could claim they were only visiting the U.S. and later leave as a citizen of another country?
The 14th Amendment further clarifying citizenship was added in 1868. Prof. Eastman focuses on that. constitution.congress.gov
It appears that the question of Obama's eligibility for office of President as a natural born citizen hinged on the citizenship of his mother, so his birthplace was a side issue ironically relevant because he was caught telling two different stories. The same side issue applied to McCain (Panama canal zone), Romney (Mexico), Cruz (Canada). and even Goldwater who was born in Arizona before statehood. Harvard Law Review goes into depth on that here: harvardlawreview.org
Kamala's parents weren't naturalized at the time of her birth, so that brings up a separate issue that applies to all anchor babies. Are they "subject to U.S. jurisdiction" if their foreign parents can pick up and leave with the baby and never subject that baby to any consequence of that jurisdiction? Should they (the parents) have the option for keeping all the benefits of their child's citizenship, while keeping the option open of no costs to their family or allegiance to the country?
For someone like Kamala who was born here and grew up in the U.S., that continued residency conferred on her the "Natural Born" stamp of approval under the prevailing legal interpretations.
The big question will be when an anchor baby "citizen" born in the U.S. but RAISED ELSEWHERE to foreign parents tries to run for president as a "natural born citizen". Then the question of jurisdiction and allegiance will be acute. It would be better to get that settled before it happens and, perhaps more importantly, it could reduce the anchor baby incentive to illegal immigration.
Wouldn't it be ironic if our failed Border Czar's candidacy got that discussion going in Congress?
The parent(s) of a natural born citizen, once that issue is tackled, should be required to be citizens themselves or, at minimum, legal permanent residents at the time of the birth. Otherwise, no citizenship would be conferred at birth and their child would have to become legally naturalized later and would never be considered "natural born".
Birthright citizenship applies to so many children of alien parents at this point, that the natural reaction of the courts is to punt on this issue. Eastman is a brave lawyer for pointing out the obvious to a system that prefers to generously ignore it - the clauses in Section 1 of the 14th Amendment weren't written in two ways to have the same meaning.
"Subject to its jurisdiction" needs some clarification, that's for sure. Without a clear definition of what that means, "born", and "natural born" get conflated. Then there's the undocumented kids... If no one knows about their birthplace, were they "subject to its jurisdiction"? |
