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Yeah, a more conventional blogpost title would be something like, \u201cwhat you should think about birthright citizenship,\u201d but I think there\u2019s a lot of room for disagreement here, and I\u2019m not going to claim that I have all the right answers.\u00a0 But let\u2019s think about the issue a little bit.<\/p>\n
To begin with, there are three separate issues:<\/p>\n
Let me address these in reverse order:<\/p>\n
First, those who oppose birthright citizenship point to two different issues:\u00a0 illegal immigrants and birth tourists.\u00a0 With respect to the former, they cite women who cross to the United States while heavily pregnant, and seem to not simply happen to give birth while living illegally in the United States, just because that\u2019s what happens when young adults migrate and find love, but who aim at having American-born children for the benefits they can confer on parents \u2014 especially protection against deportation (which isn\u2019t legally the case, strictly speaking, but de facto this moves them to \u201cnot a priority\u201d) and the promise that someday a child can sponsor family members for legal residency.\u00a0 With respect to birth tourists \u2014 well, who wouldn\u2019t feel that foreigners coming here on tourist visas and staying to give birth to give those children the benefit of American citizenship are unjustly exploiting loopholes?\u00a0 So far as I\u2019m aware, not even immigration expansionists defend this practice, but only suggest that there is little to no quantifiable actual harm being done, so that it\u2019s not worth attempting to end.<\/p>\n
Can we end these practices without actually ending birthright citizenship?\u00a0 The former is part and parcel of the question of whether we can step up our enforcement of illegal immigration:\u00a0 if we increase border enforcement, track visa overstays, mandate E-verify, and enforce prohibitions against under-the-table work, so as to result in fewer illegal immigrants, there will be fewer so-called \u201canchor babies\u201d in the future.\u00a0 Short of that, Congress could easily enough remove parents as a category of relative which a citizen can sponsor for immigration.\u00a0 As to the latter practice, the problem is narrower but there is no immediately obvious solution, since we can\u2019t pregnancy-test every visa applicant.\u00a0 Maybe there are some solutions around the edges, such as prohibiting the practice of running a birth tourist practice \u2014 though I\u2019m not sure how clearly a law could be set out that would prohibit birth tourism without ensnaring, say, an Air B&B host whose customer happens to have been pregnant.<\/p>\n
Backing up a bit further:\u00a0 is it right or wrong for a child born while a parent is here on a tourist visa, to receive automatic citizenship?\u00a0 I think most would agree that the answer is \u201cwrong.\u201d\u00a0 Does it do us quantifiable harm?\u00a0 It\u2019s easy to imagine scenarios in which these folks later show up as young adults, with their loyalty elsewhere, but with the aim of, say, studying in the United States without the hassle of a student vias, and with eligibility for student aid, to boot \u2014 but since the practice is relatively new, we can hardly quantify<\/em> it.\u00a0 Does denying<\/em> such a child, whose ties lie elsewhere, U.S. citizenship, in turn, harm that child?\u00a0 No, not unless you define \u201charm\u201d especially broadly.<\/p>\n But what about the child born of illegal immigrant parents, who intend to stay and who, in practice, will stay, given the consensus, for better or for worse, that parents of U.S. children are generally not targets for deportation?\u00a0 (Yes, I know, there are periodic reports of such individuals being deported, but the vast majority are not.)\u00a0 On the one hand, in almost all cases, claims that these children would be \u201cstateless\u201d are incorrect, as they would be citizens of their parents\u2019 homeland(s).\u00a0 On the other hand, it\u2019s simply wishful thinking to imagine that if these born-in-America children of illegal immigrants were themselves deemed just as illegally present, they would go away.\u00a0 But if we were developing a policy \u201cfrom scratch\u201d, we might land on something altogether different, for instance, some sort of conditional citizenship which provides no protection against deportation if a custodial parent is to be deported, but converts to \u201cregular\u201d citizenship at the age of majority if the individual has been more or less continuously resident in the country.<\/p>\n So having said all that, back to the original question:\u00a0 what does the 14th Amendment have to say?<\/p>\n It may not be as simple as that narrow definition in which \u201csubject to the jurisdiction thereof\u201d refers to every circumstance except for diplomats.\u00a0 The Heritage Foundation<\/a>, among other sources, provides a handy run-down of the relevant historical context.<\/p>\n Based on the legislative history at the time, the 14th Amendment\u2019s framers intended to give citizenship only to those who owed their allegiance to the United States and were subject to its complete jurisdiction, primarily the newly freed slaves, who were lawful permanent residents.<\/p>\n Owing allegiance to the United States and being subject to its complete jurisdiction means being \u201cnot subject to any foreign power\u201d and excludes those only temporarily present in the country.<\/p>\n Most legal arguments for universal birthright citizenship point to the Supreme Court\u2019s 1898 decision in United States v. Wong Kim Ark, which challenged the government\u2019s decision to deny re-entry to a U.S.-born child of foreign nationals who were legally present and permanently residing in the United States.<\/p>\n Wong Kim Ark stands only for the narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing with respect to the U.S.-born children of illegal or non-permanent resident aliens.<\/p>\n In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude \u201cchildren of ministers, consuls, and citizens or subjects of foreign States born within the United States.\u201d This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he \u201cowed immediate allegiance to\u201d his tribe and not the United States.<\/p><\/blockquote>\n Without opining on whether \u201cjurisdiction\u201d means \u201ccomplete jurisdiction\u201d in the manner in which they interpret it, it seems to me that there is not really a good answer on the question of \u201cdid those who wrote, voted on, and initially interpreted the amendment intend to include illegal immigrants and tourists?\u201d because those categories simply did not exist at the time.<\/p>\n There was no concept of an illegal immigrant in 1868.\u00a0 if you wanted to come to the United States, you came.\u00a0 The first restriction of any kind was enacted in 1875, the Page Act<\/a> which prohibited \u201cindividual from Asia who was coming to the United States to be a forced laborer, any Asian woman who would engage in prostitution, and all people considered to be convicts in their own country\u201d; the law had the effect of severely limiting the entry of Chinese women because they were viewed as potential prostitutes.\u00a0 The Immigration Act of 1882<\/a> forbade convicts, the insane, and those \u201clikely to become a public charge\u201d from entering the country, but it took quite some time beyond that before there would have been people who would have fit the modern category of \u201cillegal alien.\u201d\u00a0 (Though one wonders what would have happened in the event of a woman, newly arrived on Ellis Island and judged unfit to remain, who gave birth before being sent back.\u00a0 Would mother and child have been sent back?\u00a0 Would no one have even given any thought to fighting for the right of the child to remain because it would have seemed preposterous, and no attention was given to any \u201ccitizenship rights\u201d because when there were no immigration restrictions applicable to a (non-Chinese) healthy young adult, there would have been no need to argue over status at birth?)<\/p>\n Likewise, the concept of a \u201cbirth tourist\u201d \u2014 of someone seeking to take advantage of citizenship rights due to birth \u2014 would hardly have been comprehensible at the time.<\/p>\n What would the Supreme Court have meant in 1872 when referencing \u201ccitizens or subjects of foreign States born within the United States\u201d?\u00a0 Immigration was plentiful, so there were plenty of individuals who were \u201ccitizens or subjects of foreign States,\u201d and it seems unlikely that they meant to encompass everyone who had not renounced their foreign citizenship in this exclusion.\u00a0 To my nonexpert eye, it seems more likely that they might have intended to encompass temporary residents as a general class, but that all manner of temporary residents\/visitors in 2018 \u2014 expats on business assignments, scholars, students \u2014 either wouldn\u2019t have existed, or would have consisted of men who would either be unmarried or would have left their wives at home for years at a time.\u00a0 (Fun fact: in the early 1900s, my great-grandfather came from Greece to seek his fortune, and it took 10 years before he was settled and sent for his wife and children.)\u00a0 Looking at the context that the Heritage Foundation (and, again, similar sources) provides, it seems likely that \u201cbirth tourists\u201d and others who are clearly here temporarily would fit into this exception \u2014 while they might be \u201csubject to the jurisdiction\u201d of the United States in that, had they committed a crime while on our territory, we\u2019d prosecute them, the whole clause is vague enough to suggest that a Supreme Court decision could go either way.<\/p>\n Plus, the amendment is vague as far as timing is concerned:\u00a0 \u201cAll 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.\u201d\u00a0 \u201cBorn\u201d is in the past, but \u201care\u201d is in the present tense, and tends to suggest that the \u201csubject-ness\u201d has to be more ongoing than would be the case if the amendment stated \u201call persons who are subject to the jurisdiction of the United States at the time of birth, are citizens.\u201d\u00a0 In fact, the construction suggests that in either the case of citizenship by birth or naturalization, one can lose that citizenship by no longer being \u201csubject to the jurisdiction thereof\u201d \u2014 or at least that such citizenship is no longer guaranteed in that case.<\/p>\n But, as much as the Amendment seems to me to have envisioned a distinction between temporary and permanent residents, I don\u2019t see such a distinction between those who are here legally or illegally.\u00a0 Imagine that someone had time-travelled, and said, \u201chey, what if someday in the future, the country decides to restrict immigration and people cross over illegally anyway?\u00a0 Do you want your amendment to say that their children are citizens, or not?\u201d\u00a0 The amendment drafters may or may not have said, \u201coh, that\u2019s a good idea, we should be more specific.\u201d\u00a0 But they weren\u2019t.<\/p>\n And ironically, this is where anti-illegal immigration folk who want to wish away this problem become like gun control folk who want to wish away the Second Amendment.\u00a0 \u201cSurely if the drafters had known that someday there would be immigration restrictions, they would have taken that into account\u201d sounds a lot like \u201csurely if the Founding Fathers had known that we\u2019d have not just muskets but semiautomatic rifles, they wouldn\u2019t have permitted them.\u201d<\/p>\n So that\u2019s where I\u2019m at.<\/p>\n If I haven\u2019t lost you already by my overly-long post, what do you think?<\/p>\n \u00a0<\/p>\n Image:\u00a0\u00a0By Lewis W. Hine(Life time: 1874-1940) \u2013 Original publication: Photo-studyImmediate source: Brooklyn Museum, Public Domain, https:\/\/commons.wikimedia.org\/w\/index.php?curid=51292180.\u00a0 The text which is cropped off says that the worried looks are due to lost luggage, a detail I found interesting since this picture seems to be a standard one exemplifying hardships of new arrival.<\/p>\n \u00a0<\/p>\n