June 17, 2009

D.A. King/Polly Price – Atlanta Journal Constitution column today Should U.S. deny citizenship to children of illegal immigrants? Two views

Posted by D.A. King at 11:21 am - Email the author   Print This Post Print This Post  

Atlanta Journal Constitution

Should U.S. deny citizenship to children of illegal immigrants? Two views
Wednesday, June 17, 2009

Yes. Some exploit birthright citizenship to dodge deportation.

D.A. King

Georgia Rep. Nathan Deal’s pending legislation in Congress that would end the lunacy of awarding birthright citizenship to children born in the United States to illegal alien parents should have become law when he first introduced it six years ago. It should be passed into law now.

It won’t be. But the issue needs to be discussed.

One of the myths surrounding the 14th Amendment to the U.S. Constitution and the current convoluted misinterpretation of its birthright citizenship clause is that automatic U.S. citizenship is granted to every child born on American soil.

It is not. Doing so was never the intention of Congress.

Despite lawfully present parents, children born in the United States to diplomats and other public ministers of foreign nations are not awarded what is arguably the most coveted and valuable title in the world: “United States citizen.”

The fact that Deal’s reasonable and logical corrective legislation has near zero chance of passing speaks volumes on the power of the well-heeled lobby that has made a thriving industry out of the organized crime that is illegal immigration.

A result of the Civil Rights Act of 1866, the citizenship language in the 14th Amendment was intended to reverse the injustice of the Dred Scott decision of 1857 that, simply described, denied constitutional protections and citizenship to black Americans.

Before its ratification in 1868, Michigan’s Sen. Jacob Howard, author of the citizenship clause in the 14th Amendment, made the intent crystal clear to the Senate: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to ambassadors or foreign ministers accredited to the government of the United States, but will include all other classes of persons.”

The 14th Amendment to the Constitution was never meant to reward illegal aliens with the jackpot grand prize of becoming a parent of a new American citizen who would then serve as immunity and insulation from punishment for violating U.S. immigration laws, or as an “anchor baby” to gain access to welfare benefits.

It was passed before the nation had laws regulating immigration. There were no illegal aliens for the mid-19th-century lawmakers to imagine or define.

The 21st-century reality is that in addition to taking in more legal immigrants than any nation on Earth, the United States also suffers more illegal immigration than any other country. Using Border Patrol apprehension statistics, Arizona Sen. John McCain estimated that in 2002 nearly 4 million illegal aliens entered the United States.

Upon capture, the belligerent defense from well-prepared illegal aliens who face deportation is the now standard “You can’t deport me; I have an American citizen child.” In today’s fading republic, enforcement of immigration laws is depicted as mean-spirited and “breaking up families.”

Many legal scholars have noted the disparity of the intention of the change to the Constitution and the end result of the amendment.

Writing on the history of the 14th Amendment in a 1997 edition of the Yale Journal of Law and the Humanities, for example, Emory University law Professor Polly Price accurately noted that “politically no one intended to accord equal citizenship rights solely on the basis of birth within the territory.”

With endless advocacy for open borders, expanding

NAFTA to include the free flow of people, hordes of illegal border-crossers invading our nation and millions of “guest workers” being imported each year, continuing the practice of awarding automatic citizenship to their offspring is effectively taking the power and authority to control America’s future away from the American people and surrender it to the whims of alert foreigners who recognize a golden goose when they see one.

We are progressively making the terms “American citizen” and “sovereignty” meaningless.

D.A. King is president and founder of the Georgia-based Dustin Inman Society, which opposes illegal immigration and open borders.


No. Plain reading of 14th Amendment shows will of Americans.

U.S. Rep. Nathan Deal, who is also a Republican candidate for governor of Georgia, is proposing a measure in Congress to deny citizenship to the children of undocumented aliens who are born here. Deal proposes, by statute, to dispense with “birthright citizenship” — the rule that all people born in the territorial United States are automatically citizens of this country, regardless of the citizenship status of their parents.

But birthright citizenship cannot be changed by an act of Congress.

The automatic grant of citizenship to any baby born on U.S. soil is enshrined in the 14th Amendment to the U.S. Constitution. Any change to this constitutional command requires a constitutional amendment. A constitutional amendment requires a two-thirds majority vote in both houses of Congress and approval by three-fourths of the states.

The language of the 14th Amendment to the U.S. Constitution is clear: “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.” This is, in fact, the very first clause of the 14th Amendment.

Not only is the language clear, so are the Supreme Court precedents interpreting it. The 14th Amendment was added to the U.S. Constitution in 1868, after the Civil War. A few decades later, the Supreme Court ruled that the language meant what it said.

The 1898 case known as United States v. Wong Kim Ark determined that a person born on U.S. soil to Chinese citizens (who were present in the United States but unable to obtain citizenship by law) was nonetheless a citizen of this country. Arguments presented to the Supreme Court centered on the claim that the 14th Amendment applied only to former slaves of African descent. The Supreme Court easily rejected this argument, ruling that the 14th Amendment’s birthright citizenship provision was not limited by race.

That the Supreme Court has not had more recent occasion to revisit this ruling is due to the clarity of the language in the Constitution.

It is a tortured reading of the plain language (something “activist judges” are accused of doing) to conclude that the 14th Amendment does not mean what it says. Do the proponents of this statute actually claim that any child born here of noncitizen parents is not “subject to” our “jurisdiction,” as the 14th Amendment reads? If that person breaks a law, would the proponents insist that we could not put that person in jail?

The Republican Party believed it was necessary to amend the U.S. Constitution in order to change the rule of birthright citizenship during the Reagan and the first George Bush presidencies. At that time, the Republican Party’s platform called for a constitutional amendment on this issue.

The provision disappeared during George W. Bush’s first presidential campaign. The omission was an exercise of expediency, to court Hispanic voters.

The present attempt to change this long-standing constitutional practice by statute is new. It is no doubt a realistic acceptance of the difficulty of amending the Constitution. In the more than two-century history of our federal Constitution, only 27 amendments have been ratified. Ten of those amendments, the Bill of Rights, came into effect in 1791.

Whatever the merits of the proposal to change the rule of birthright citizenship, the way to do so is not through enacting a statute in Congress. Hearings on the proposal would no doubt shed light on the various policy considerations for and against the practice, but an effort to enact a statute on the subject would be a waste of Congress’s valuable time.

What is worse, Deal has said he is not optimistic that his proposal could become law unless it is “tacked onto another bill.”

This is not a matter for Congress alone. It is a matter for the American people. The 14th Amendment meant something when it was ratified. It means something now.

Polly J. Price is professor of law at Emory University and the author of “Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench.”