The Romans took citizenship very seriously. Only citizens had the right to vote, marry, make legal contracts, and have a trial and appeal the decision of the lower court. Americans, on the other hand, are in the process of getting rid of the concept of citizenship altogether. We are not controlling the border or making any serious effort to remove illegals. Indeed, we are encouraging illegals to come, by granting citizenship to their children. Our current practice is not much of a problem if you are enforcing the border. But today, eight percent of babies born in the United States are born to illegal aliens. The Pew Hispanic Center estimates that we have four million persons born to illegal aliens who are being treated as if they were citizens.
The United States is one of the last countries to continue to grant citizenship automatically on the basis of being born in the country. This policy has given rise to a new vocabulary. Most Americans are familiar with the term anchor baby—a child born in the United States that eases the way for citizenship of his immediate and extended family. Other, less common terms are jackpot baby and maternity tourism. The jackpot baby gives the family access to America’s ample social subsidies. Maternity tourism is a growing trend of Asian women arranging their travel plans to give birth here so their children have access to the best universities. For a fee of $15,000 an agent will make all the arrangements to ensure the child is born in the United States, and the family can return home with the peace of mind that their child can compete for a spot at a top university when the time comes.
Polling data consistently show that a large majority of Americans don’t approve of granting citizenship to the children of people who are here illegally. Can the majority have its way? Does the 14th Amendment require automatic citizenship? If it does, we are in deep trouble, because amending the Constitution is practically impossible.
Sen. Lindsey Graham (R-SC) has proposed a constitutional amendment to deny citizenship to children born here of illegal aliens. By assuming a constitutional amendment is necessary to change the current practice, his proposal badly distorts the public debate. The states would ratify such an amendment, but they will never get the chance. The states would also ratify amendments to require balanced federal budgets, impose term limits, and ban unfunded mandates. But, as the senator certainly knows, since a third of the Senate can prevent any amendment from going to the states, it is next to impossible to get one out of the Senate.
Others think Congress needs to pass a law. A bill, H.R. 1868, provides birthright citizenship only if the mother or father of the person born here is a citizen or permanent resident. Actually, neither an amendment nor a new law is necessary to change our current practice. All that is necessary is a phone call from the president to the attorney general. Automatic citizenship is a construct of the agencies enforcing it and can be changed by administrative action. It is not based on law or the Constitution.
The issue is now critical because of our lax border enforcement.
The country used to take the border seriously. Repatriation programs followed both World War II and the Korean War to provide jobs for returning GIs. President Eisenhower, in the summer of 1954, executed Operation Wetback, a repatriation program that forced the return of 1.3 million illegal aliens to Mexico. The Border Patrol at the time had 1,075 agents—one-tenth its size today. The illegal aliens were rounded up and returned to Mexico by truck, bus, and ship. Ships were the preferred method, because they carried the illegal aliens further from the border than the trucks and buses. The boat lift was called off after Mexican objections followed the drowning of seven deportees who jumped off a ship.
The 14th Amendment reversed Dred Scott to grant U.S. citizenship to former slaves. It confers citizenship on “all persons born or naturalized in the United States and subject to the jurisdiction thereof.” A literal reading seems to support our current practice. But the crucial language is “subject to the jurisdiction thereof.” Everyone who is physically here, of course, is subject to the jurisdiction of the United States. If the clause means nothing more than that, it is simply redundant, and anyone born in the United States is a citizen. But in Elk v. Wilkins (1884), the Supreme Court found the language means “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”
The United States adopted the concept of birthright citizenship from English common law. If a person was born within the allegiance of the king it was reasonable to assume consent to the king’s sovereignty. “Allegiance” to the king was also described as “obedience,” “faith,” or “power.” Such allegiance and protections were mutual—as expressed in the maxim “Protectio trahit subjectionem, et subject protectionem.” Children born in England to “aliens in amity” were treated as citizens. The term included children of sojourners. It did not include children of foreign ambassadors or of soldiers invading the country. The underlying idea of birthright citizenship is implied mutual consent. The child consents to the king’s sovereignty, and the king recognizes his obligation to protect the child. There is no implied mutual consent in the case of the children of an invading army. Similarly, neither party is consenting in the case of illegals. The first step in the relationship is a violation of U.S. law. Their continued presence, with the threat of deportation, means the relationship cannot grow into consent. The illegals can only stay by avoiding the sovereign’s authority.
In 1981, Great Britain changed her ancient law to repeal automatic citizenship. Now, the child must be born to a mother or father who is a citizen, or to someone legally settled in Great Britain. On the Continent, Europeans have always based citizenship on blood rather than place of birth.
The Supreme Court cases interpreting the “jurisdiction” language rest on the implied consent of the citizen and state. Indians, for example, certainly meet the literal terms of the 14th Amendment—they have been born here and are subject to the jurisdiction of the United States. But in Elk, the Supreme Court held that Indians—even those who wanted to assimilate—were not citizens within the amendment’s language. Indeed, Indians did not become citizens until statutes were passed in 1924 and 1940.
Over a decade after Elk, the Court held in United States v. Wong Kim Ark (1898) that a child born in the United States to permanent legal residents was a citizen, even though his parents were subjects of the emperor of China, which, under our law, precluded citizenship. The Court noted that the case presented a “single question,”
namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.
The Court answered the question in the affirmative. Justice Harlan dissented, saying that to be “completely subject” to the political jurisdiction of the United States, one could not be subject in any degree to the political jurisdiction of the emperor of China. Elk and Wong Kim Ark are the only Supreme Court cases that turn on the issue of birthright citizenship. No justice in either case interpreted the 14th Amendment as providing automatic citizenship to anyone physically born here.
The American experiment is based on the idea of self-government—the consent of the governed. Peter H. Schuck and Rogers M. Smith, two Yale professors, found in a 1985 study (Citizenship Without Consent) that “American liberal democracy is based on the notion of political membership by consent and that citizenship by birth for these [illegal] aliens is inconsistent with this commitment.” The study concluded that the constitutional standard was based on the implied mutual consent of the child and the state.
In 1995, Congress held hearings on several bills to limit citizenship to children born here of a mother who is a citizen or legal resident. The Clinton administration opposed the bills, claiming the 14th Amendment mandates automatic citizenship. Assistant Attorney General Walter Dellinger dismissed Schuck’s and Smith’s study as “academic.” Dellinger conceded that there was no Supreme Court decision which holds that children of illegals are granted citizenship by the 14th Amendment. Instead, he relied on political correctness and general notions of fairness, and a misreading of Wong Kim Ark. Any other view, he concluded, was “deeply shameful for contemporary Americans.” The bills went nowhere because both political parties were, and are, pursuing open-borders policies—the Democrats, to get voters, and the Republicans, to get cheap workers.
Judge Richard Posner of the Seventh Circuit disagrees with Dellinger. In a concurring opinion in Oforji v. Ashcroft (2003), he cites a commentator as saying, “there is a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.” Posner added,
We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. . . . A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.
Should we even allow the Supreme Court to interpret the 14th Amendment language on birthright citizenship? That decision is up to Congress. The Court, over the past 30 years, has largely wiped out the distinction between citizen and noncitizen. It has not addressed the fundamental issue of who is a citizen. Since Wong Kim Ark, it has focused, instead, on what rights should be granted to those who are here illegally. It has granted constitutional rights to illegal aliens (finding in Plyler v. Doe that Texas violated equal protection by excluding illegal-alien children from public schools) and terrorist detainees (granting them, in Boumediene v. Bush, a habeas corpus hearing and undefined constitutional protections). Plyler, a 5-4 decision, found that Texas was discriminating against people who were here illegally—which is, to say the least, counterintuitive. The Court also wrote that “jurisdiction” in the 14th Amendment meant physical presence, although that issue was not before them. If physical presence is the sole test, Elk and Wong Kim Ark are wrong. Also, that interpretation leads inexorably to the ludicrous position that, in the case of an invading army, the children of the troops would be constitutional U.S. citizens. Both of the recent decisions give constitutional rights to illegals. The Court doesn’t place much value on citizenship; so if it follows those cases it will probably grant citizenship to the children of illegals.
Article III of the Constitution grants Congress control over the Court’s “appellate” jurisdiction. Only the Court’s “original” jurisdiction—i.e., cases involving ambassadors and those in which a state is a party—is constitutionally based. All the rest of the Court’s authority comes from Congress. Congress can, and frequently does, remove an issue from the Court’s authority. It simply has to pass a law denying federal courts the authority to deal with the issue of birthright citizenship under the 14th Amendment.
As a matter of policy, Congress can make any provision it thinks fair for those already here and for future children. It could make them eligible for citizenship at age 21 by passing a citizenship and language test. The point is that Congress has options it seems unaware of.
We don’t need a constitutional amendment to accomplish the wishes of the majority of Americans. We just need to reverse the erroneous agency interpretations of the 14th Amendment and, by a simple statute, insulate that decision from the Supreme Court.