I don't believe taking away automatic birthright citizenship is inconsistent with the Constitution

Many people have said that the Fourteenth Amendment automatically guarantees birthright citizenship to any child who happens to be born on U.S. soil.
I don't believe that's necessarily the case.

Let's look at the text in question:

"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."
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It doesn't just say "all persons born in the United States". The further qualification for automatic citizenship is they have to be "subject to the jurisdiction" of the United States.
So, what exactly does this mean?

Obviously if an invading force came in and was occupying U.S. territory it would not be "subject to the jurisdiction" of the U.S. At that time, one of the reasons for this clause was that it was not believed certain Indian tribes were citizens of the U.S., so the clause was meant to block automatic citizenship to these tribes living out of direct purview of U.S. jurisdiction, even though they may have been in U.S. territory. (reference here)

We all know that the clear and original purpose of the Fourteenth Amendment was to guarantee citizenship to former African American slaves, in particular to explicitly overturn the Supreme Court's Dred Scott decision.

This is my view on it. If the parents and their child are fugitives from the law, and citizens of another country, they are not actually to be considered under jurisdiction of the country. "Jurisdiction" implies that they are allowed by the government to remain and live there. If a child born in the U.S. is allowed to remain there, they should be considered "naturalized", but if a baby is only a few months old and has been hidden away, it should not automatically be granted immediate citizenship just because the foreign parents happened to give birth while in the country.

Another important question that arises is how could the U.S. government at that time actually know who had been born in its territory? This was before accurate records were kept of birth records or people had Social Security numbers.
I think it's pretty clear that the text of the Fourteenth Amendment was meant to apply in a more general sense. Obviously the African American slaves had been living there for several generations, and as a group were almost all without exception born there.

 

I dont think it matters all that much. A lot to do about nothing. Frankly I am more concerned about almost anything else dealing with immigration then this.

 

Birth tourism brings Russian baby boom to Miami

 

There is territorial jurisdiction which means that if you are in a particular place, you are subject to the laws in that particular territory. As you note, the 14th does have a clause which states that citizenship is guaranteed to "the jurisdiction thereof" which could be argued applies to people in the country illegally. They're still going to go to prison for breaking the law.

There is also judicial jurisdiction. The 14th amendment places right to citizenship in the jurisdiction of the federal government which is required to follow the constitution, and "born in the United States" does tend to point to babies born here to be granted citizenship. The legality of the mother isn't going to infringe on that right.

Since the constitution does appear to be pretty clear, I'd have to say that illegals are in the right on this. Their children do have the right to receive citizenship.

So the textual argument is pretty easy to make, but the intent is impossible to make. The 14th was never intended to allow for this invasion of pregnant women. It was just put there to give slaves citizenship. How the supreme court rules on this one is anybody's guess. If I was a supreme court justice, I'd have to rule for the textual argument. Then chastise congress for not doing their duty to the American people who they represent.

 

We have clear precedent that the Fourteenth Amendment was not intended to apply to Native American tribes living on U.S. territory.

So your interpretation would have to explain that.​

That's why I believe all the rights granted to citizens should be extended to them up until the point they are actually sent back.

If they are residing in the country illegally, and have been arrested and still not deported, then I would say you are right, they are under U.S. jurisdiction.

But what you're describing isn't a very realistic scenario. The typical thing that happens is the parents illegally enter and then the mother plops out a child. The parents might be sent to prison for illegal entry (if it was their second time being caught) but usually they're not going to send a child to prison, especially not if he had been born in the country, and I believe this would still hold true even if the law changed and the U.S. did not recognize citizenship and legal residency automatically arising from birth.
I may be wrong here but I believe what happens with illegal children apprehended with their parents is that the children are free to go back with relatives or live temporarily at an orphanage in their own country until their parents are released, if they want, unless they are very young children and the parents want to stay with them in the detention facilities, or unless the children are waiting to try to appeal their deportation. (So right now the children have a choice not be in prison, and are not kept under U.S. jurisdiction if they don't want to)

They have to be both born in the United States AND under "the jurisdiction thereof" to be automatically granted citizenship under the Fourteenth Amendment.

Yes, and under current law the federal government has decided to grant automatic citizenship based on birth, but there are many who would argue this is not necessarily a Constitutional requirement.
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I believe you are correct. The parents are put in prison and we try to give guardianship to family members here legally, or send them back to wherever their parents are from. This is not an ideal situation.

I'm just trying to think of how we could get around the text of the 14th which seems pretty obvious to me, and the intent which is also obvious, but points in a completely different direction. My bias tells me that going with intent would mean there is no such thing as anchor babies. I just can't be that dishonest with myself. The 14th is still in the constitution, and that is the fault of congress who should have gotten rid of it just as soon as there was no possibility that there are ex-slaves still wandering around the country without citizenship.

The damn situation is so muddled now that I'm guessing that the supreme court will refuse to touch it, thus leaving it in the hands of lower courts to decide.

 

It depends very much on the interpretation of "subject to the jurisdiction".
I don't believe those words were meant to be taken absolutely literally. In fact, if they were to be taken completely literally it wouldn't make much sense why they were included in the first place. We have to ask ourselves why those words are there.

 

Another thing, depending on how one construes the last part of the clause,

"... are citizens of the United States and of the State wherein they reside. "
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one could say that they are actually required to reside in the United States for a permanent period of time.

I could take some parts out and rewrite it to make it clearer:
"All persons born in the U.S. are citizens of the United States wherein they reside."

So it presupposes they were not only born in the U.S. but also reside there.

A woman pregnant in Mexico who crosses the border in the 8th month of pregnancy and gives birth a few days later, and then are immediately sent back to Mexico with their newborn baby, I would say that baby never really "resided" in the U.S., as far as the Fourteenth Amendment is concerned.

The same thing for those travelling with a temporary visa.
If a pregnant woman gets a TEMPORARY visa to come to the U.S., and then gives birth there, I don't think that baby should automatically get citizenship.

I believe "reside" should be interpreted as more than just a vacation or a short stay.

 

Its not clearly defined however which means the supreme court can go either way with it.

 

What about expats?

 

The children of expats are automatically granted citizenship under U.S. law.

If only one of the parents is a U.S. citizen, that parent must have been physically present in the United States for five years prior to the person’s birth, at least two of which were after the age of fourteen. The U.S. citizen parent must be the genetic or the gestational parent and the legal parent of the child.

 

That's nowhere to be found in your idea for amending the 14th. It specifically states "wherein they reside".

 

I'm not sure what you're implying. The two have nothing to do with each other.

The Fourteenth Amendment doesn't have anything to do with expats, and the Fourteenth Amendment is not the only way one can acquire citizenship.

 

I believe how it should and will be interpreted is, if they are for all practical intents and purposes allowed to remain residents, they should be regarded as citizens, and at some [unclearly] specified amount of time they should be regarded as naturalized and it will be too late to take their citizenship away (i.e. their citizenship has solidified into a state of permanence). Obviously if a child has been born in the country and spent their entire childhood growing up in the country and have now reached adulthood, they are permanent citizens.

If I was writing the law, I might make it something like the child has to have reached the age of 12 to 15 as a resident in the country, and must have spent at least 8 of those years in the country, possibly partially verifiable by level of language proficiency.
And I think the status of the parents should be considered in all this also. Ideally we would want to avoid a situation where the child is separated from the parents. So that could either involve deporting the child with the parents, sending the child to an orphanage in the parent's country of origin (to make sure the child learns the language there and can later be reunited with the parents living in that country, if the parents have been sentenced to prison time), or if the child is old enough, letting them go back with their parents but exempting them from some of the residency requirements for U.S. citizenship if they later want to come back, so the family will not feel compelled to leave their child alone in the U.S.

 

No, the 14th does include expats by the same "subject to the jurisdiction" clause that is being discussed. Expats are still subject to the judicial jurisdiction that every other American citizen is subject to. That means they are subject to all federal laws on the books.

I'm not trying to be difficult, but I already explained that there are two basic types of jurisdiction at play here. There is territorial which you used by talking about "reside in" and judicial which applies to federal law, and that doesn't care where you happen to be.

Would be a hell of a thing to watch judicial jurisdiction be removed during an international flight once the economy class passengers decided to storm first class.

 

I don't understand what you mean by "expat". I'm confused by what you are talking about.

I don't see how what you are talking about has anything to do with what we are discussing.

Are you talking about if someone gains U.S. citizenship under the Fourteenth Amendment and then leaves the country, would it still apply?
If that's what you are trying to get at, I think the issue then might be how long they have had residence in the U.S.
And U.S. "jurisdiction" might not necessarily apply if U.S. law does not consider them to be citizens yet.

 

No, I'm talking about kids like John McCain and Ted Cruz who were born to expats, and registered as U.S. citizens at embassies in foreign countries.

Understand, I'm not trying to be difficult, but these situations are why the subject is so difficult to figure out. There are different kinds of jurisdiction, and by limiting it to territorial jurisdiction, you are going to find problems, just as you do if you expand it to mean judicial jurisdiction, such as with the anchor babies.

 

Obviously the Fourteenth Amendment does not give them the right to be citizens.
What's so difficult to figure out about that?

You do realize that the Fourteenth Amendment is not the only way someone can aquire citizenship.

(I think in the case of John McCain he was born on a U.S. military base, so that's U.S. territory)

 

No, U.S. military bases are not U.S. territory. They are there on agreements with the local governments which are agreed to by a status of forces agreement which is unique to each country the military base is located in.

I'm really not trying to be difficult here, but you seem to be somewhat unaware of just how the law works. It's fine, but lawyers have to think differently from other people because laws are seen in a completely different way to some moe. They are either really precise, or there's going to be some disagreement, and that disagreement is never as cut and dried as Moe would like.

 

Sorry but that's a load of liberal crap.

Its not our mess, kick them all back across the border and let them straighten it out.

WTF did this become our responsibility?

 

why? birthright citizenship for simply aiming your vagina in the right direction is one of the biggest draws for illegals who violate our borders with impunity.

 

well actually it is... born or naturalized. only two choices.

 

it is our responsibility to hold accountable those to whom we’ve given the authority to represent us. as for illegal alien offspring we are stuck with them. and until we demand our leaders fix the 14th amendmet, they will keep coming to pop citizens out on our shores.

 

I was talking about for those that were born in the U.S.

 

Oh, my mistake then.

Any new ruling by the court on the 14th will more than likely not be retroactive.

Completely shut down the border, make them all citizens, and implement the new policy and we can move on.

Any future illegals born here are to be denied citizenship however.