Robbins: Birthright citizenship in Happy Valley
Foreigners have always come to Vail.
Some come to play, some to work, and some to stay. Each contributes to our community, both economically and to the textured fabric of our closely knit society. Although our diversity is narrow, it is deep.
In many places and in many instances, Spanish, and not English, is the lingua franca. Our lack of isolation and our open arms are among our many riches, as gleaming as the Gores in snow-capped winter, or as sparkling as our creeks and rivers.
Long before our famous winter playgrounds blessed us, foreign influx was the case; laborers to work the mines, craftsmen of myriad talents and descriptions, agricultural workers who tilled, and sowed, and enriched the farms and ranches, carpenters and masons, and thousands of others who contributed to this valley and shaped it into the form that we now know it.
Many came — and come — legally, on stamped passports, visas, or otherwise. And some do not. Regardless, if while they are resident among us and a bouncing baby boy or girl arrives, congratulations, he or she pops out as a spanking, brand new U.S. citizen.
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But why is that?
Glad you asked.
Blame it — or perhaps celebrate it — on the United States Constitution. Yeah, that one.
Well, how so?
The welcome wagon of “birthright citizenship” is enshrined in the 14th Amendment within which the right of U.S. citizenship is guaranteed to most people born on U.S. territory. What is known as the “Citizenship Clause”, adopted in July 1868, provides that, “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.”
United States citizenship can be acquired by birthright in two situations: by the person’s birth within United States territory or because at least one of their parents was a U.S. citizen at the time of the person’s birth. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.
The amendment overrode the Supreme Court decision in Dred Scott v. Sandford (1857) that denied U.S. citizenship to African Americans, whether born in the United States or not, and whether a slave or a free person. Under the Fourteenth Amendment and the Immigration and Nationality Act, a person born within and subject to the jurisdiction of the United States automatically acquires U.S. citizenship, known as jus soli (“right of the soil”).
This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands. The “subject to the jurisdiction thereof” clause excluded Native Americans living under tribal sovereignty, and U.S.-born children of foreign diplomats. Birthright citizenship was later extended to U.S.-born Native American subjects by the Indian Citizenship Act of 1924. Federal law also grants birthright citizenship to children born elsewhere in the world to U.S. citizens (with certain exceptions), known as jus sanguinis (“right of blood”).
And so, the precept of “if you’re born here, welcome, you are one of us” is, if not exactly hammered in stone, inked in the holiest of holies of our nation’s sacred instruments. As such, if in fact one wanted to change it, it would require a Constitutional amendment and would present an attenuated, likely contentious, Herculean task.
I’ll let you do the math but here are the variables to plug into your equation: the Constitution was born in 1787 but was not adopted until 1788. Since, although more than 11,000 amendments have been proposed, it has been amended only 27 times and the first 10 amendments — the Bill of Rights — were adopted in 1791. The last Amendment — number 27 — was proposed by Congress in 1789 and ratified by the states in 1992. Dwell on that a moment, if you will.
The authority to amend the Constitution is derived from Article V of the Constitution itself. An amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the state legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.
The Congress proposes an amendment in the form of a joint resolution. Since the president does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. Thereafter, to be approved and adopted as the law of the land, a proposed amendment must first be ratified by three-fourths of the States (38 of 50 States). If not, the Constitution remains as written and unamended.
Do we, and will we in the future, have birthright citizens among us here in Happy Valley?
Certainly.
And the Constitution says that is precisely how it should be. It is but one of many ways by which we expand the talent pool of our strong and vital citizenry.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
