Mazzuca: Amend the 14th Amendment
A seldom discussed aspect of the immigration debate is the interpretation of the 14th Amendment to the U.S. Constitution. Section 1 of the amendment begins as follows: “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.”
It can be argued however, that “birthright citizenship” was enacted specifically to ensure civil rights for the newly freed slaves after the Civil War, not to provide automatic citizenship for anyone whose mother just happened to be in this country when they were born.
According to the U.S. Census Bureau, every year 380,000 illegal immigrant mothers give birth to children who automatically become U.S. citizens. The only exception to automatic citizenship is for children of foreign diplomats stationed here and whose citizenship at birth is governed by international treaty.
Illegal alien parents of children born in the U.S. are rarely deported. In most cases immigration judges make exceptions for the parents on the basis of their U.S.-born children and grant the parents legal status. In many other cases, immigration officials do not try to deport illegal aliens with U.S.-born children. As a result, the parents simply remain here illegally.
An entire industry has built up around the U.S. system of birthright citizenship. Thousands of pregnant women who are about to deliver come to the United States each year from as far away as Asia and as near as Mexico so they can give birth on U.S. soil. Some come legally as temporary visitors; others enter illegally.
But regardless of how they came here, once the child is born they get a U.S. birth certificate and passport for the child, and their future link to this country is established and irreversible.
A serious and scholarly debate has been on-going for years about whether illegal aliens (and temporary visitors) really are, in fact, “subject to the jurisdiction” of the United States. Some constitutional scholars insist the phrase has no real meaning of its own; rather it is essentially another way of saying “born in the United States.” They contend the 14th Amendment provides that any child born on U.S. soil be granted U.S. citizenship ” period, end of discussion.
However, other scholars look to the legal traditions observed by most courts, including the presumption that all words used in a piece of legislation are intended to have meaning, and that if the meaning of a word or phrase is ambiguous, the debate over the legislation should focus on the intent of those who wrote the amendment.
This latter group of scholars presume that the words “subject to the jurisdiction,” means something different from “born in the United States,” and have looked to the original Senate debate over the 14th Amendment to determine its actual meaning.
They have concluded that the authors of the 14th Amendment did not want to grant citizenship to every person who happened to be born on U.S. soil.
Upon examination of the Senate records from that 19th century debate, the jurisdiction requirement was added to the original draft of the 14th Amendment after a lengthy and acrimonious debate. Sen. Jacob Merritt Howard of Michigan proposed adding the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship.
The jurisdiction requirement Sen. Howard proposed also is consistent with our naturalization requirements inasmuch as allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.
Since 1795, federal laws governing naturalization have required aliens to be proactive in their quest for citizenship. Immigrants are obligated to renounce all allegiance to any foreign power and to support the U.S. Constitution before they can become a citizen.
Citizenship involves more than the physical location of one’s birth; it also involves a measure of cultural connection and allegiance, which is likely the reason no other western nation grants automatic citizenship to those who simply happen to be born within their borders.
The Supreme Court has never decided the issue. The closest it has come is a case involving the U.S.-born child of lawful permanent residents in which, of course, it held the child to be a U.S. citizen.
This issue is central to the national immigration debate, and Americans who feel illegal immigration is a grave threat to our sovereignty should press the Congress to amend the 14th Amendment. As long as it retains its current interpretation, it serves as a perverse incentive for people to continue sneaking across our borders to have their babies and circumscribes our options for true immigration reform.
Quote of the day. “You cannot lift your children to a higher level than that on which you live yourself.”
Butch Mazzuca is a business consultant and writes a column for the Vail Daily. He can be reached at email@example.com.