by Bob Quasius
For more than two decades, anti-immigrant politicians and activists have stridently sought to redefine birthright citizenship. Harry Reid even introduced a bill in 1993 to redefine birthright citizenship, to exclude the children born of unauthorized immigrants. Hypocritically, Reid now criticizes Republicans who introduce anti-immigrant laws!
Opponents of birthright citizenship claim the framers of our constitution and authors of the 14th amendment meant something entirely different than what our courts have consistently ruled for over 100 years.
The plain language of the 14th amendment is crystal clear, which explains why no court has sided with birthright citizenship opponents. Section 1 of the 14th amendment states:
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.
Opponents deliberately confuse “allegiance” with “jurisdiction”, claiming that children born of unauthorized immigrants owe allegiance to their parents’ home nation, not to the U.S., and therefore are not subject to the jurisdiction of the United States. Black’s law dictionary defines jurisdiction as:
The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.
In layman’s terms, if a court or government can hold you accountable under laws, then you are subject to its jurisdiction. Applying common sense, virtually everyone present in the U.S., regardless of any allegiance to any foreign government, is subject to U.S. jurisdiction. If an unauthorized immigrant throws a gum wrapper on the sidewalk in violation of anti-littering laws, they can be given a ticket or arrested. That’s jurisdiction! If unauthorized immigrants or their children were not “subject to the jurisdiction thereof” then they would be immune to U.S. courts, could not be sued, fined, deported, etc.
The only present exception to U.S. jurisdiction are foreign leaders, diplomats and their families including U.S. born children, who have diplomatic immunity and cannot be arrested or sued in U.S. courts, and therefore are not subject to U.S. jurisdiction. If a diplomat throws a gum wrapper on the sidewalk in front of a cop and the cop tries to ticket for littering, the diplomat can claim immunity under international law and U.S. courts cannot fine him for littering.
Another frequent argument against birthright citizenship is that the 14th amendment was merely intended to ensure that newly freed slaves would be considered citizens and not to grant citizenship to children born of unauthorized immigrants.
Its true the purpose of the 14th amendment was to address citizenship of slaves. Under English Common Law at the time the U.S. became a nation, children born of slaves were not considered subjects or citizens, and the 14th amendment was needed to reverse the infamous Dredd Scott decision in which the U.S. Supreme Court ruled that blacks could never become citizens.
The doctrine of 1776, that all (white) men “are created free and equal,” is universally accepted and made the basis of all our institutions, State and National, and the relations of citizenship–the rights of the individual–in short, the status of the dominant race, is thus defined and fixed for ever.
But there have been doubts and uncertainties in regard to the negro. Indeed, many (perhaps most ) American communities have latterly sought to include him in the ranks of citizenship, and force upon him the status of the superior race.
This confusion is now at an end, and the Supreme Court, in the Dred Scott decision, has defined the relations, and fixed the status of the subordinate raceforever–for that decision is in accord with the natural relations of the races, and therefore can never perish. It is based on historical and existing facts, which are indisputable, and it is a necessary, indeed unavoidable inference, from these facts.
There is little doubt the purpose of the 14th amendment was to overturn Dredd Scott v. Stanford and ensure that Southern states respected newly freed slaves as citizens. However, transcripts of the Congressional debate showed that the status of children born of immigrants was vigorously debated. Some members of Congress wanted to exclude children born of Chinese immigrants, but when the vote was taken the 14th amendment passed.
Transcripts of debates in state legislatures that ratified the 14th amendment would no doubt show that citizenship of children born of immigrants was also considered. There is no grand historic misunderstanding. Congress did not intend to exclude the children born of immigrants from birthright citizenship. and a plain reading of the 14th amendment is crystal clear.
A good explanation of the 14th amendment can be found in this briefing by the Cato Institute. It is especially noteworthy that slaves imported after the ban went into effect in 1808 were among America’s first unauthorized immigrants, as well as many impoverished Irish immigrants who bypassed legal ports of entry to evade a head tax which they could not afford. In light of the ban on the slave trade which continued anyway, it is logically inconsistent to argue Congress meant to exclude anyone who immigrated illegally.
Prior to the 14th amendment, English Common law provided for birthright citizenship except for slaves. Upon independence, states passed reception statutes to implement and continue English common law except where it conflicted with state constitutions.
So just what did English Common law say about birthright citizenship when the constitution was adopted? The most authoritative text “An Analysis of the Laws of England” by William Blackstone, first published in 1765, and reprinted in 1770, 1773, 1774, 1775, 1778 and 1783. An updated version of Blackstone’s authoritative text was published by Henry John Stephen in 1841, and reprinted until after the Second World War.
Blackstone defined “natural born subjects” as those born within the dominions of England, and he argued that even if a natural born subject later swears allegiance to another nation, they are still natural born subjects of England. When America became a nation, we called ourselves citizens rather than subjects, but the concept of birthright citizenship remained. From William Blackstone (1765), Commentaries 1:354, 357–58, 361–62
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due…
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.
Since Obama’s election, another dimension to the birthright citizenship debate emerged, claiming that one is not a “natural born citizen” unless both parents were citizens. Article Two of our constitution requires that our president be a “natural born citizen” but does not define that term:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States
A 2011 report prepared by the Congressional Research Office concludes:
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
This conclusion is entirely consistent with Blackstone’s commentary on English common law:
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.
Blackstone also notes that children born abroad of diplomats are still considered natural born subjects:
Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
As per Blackstone’s commentary, Americans such as John McCain, who was born of American citizen parents on a U.S. military base in Panama, who would have been considered a natural born subject of England under English common law. Ditto for Marco Rubio, whose parents were permanent residents of the U.S. when he was born.
The Congressional Research Service also notes:
The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the term evident in the notes of the Federal Convention of 1787. The use of the phrase in the Constitution may have derived from a suggestion in a letter from John Jay to George Washington during the Convention expressing concern about having the office of Commander-in-Chief “devolve on, any but a natural born Citizen,” as there were fears at that time about wealthy European aristocracy or royalty coming to America, gaining citizenship, and then buying and scheming their way to the presidency without long-standing loyalty to the nation. At the time of independence, and at the time of the framing of the Constitution, the term “natural born” with respect to citizenship was in use for many years in the American colonies, and then in the states, from British common law and legal usage. Under the common law principle of jus soli (law of the soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the United States afterwards, and continued to prevail under the Constitution …” with respect to citizens. In textual constitutional analysis, it is understood that terms used but not defined in the document must, as explained by the Supreme Court, “be read in light of British common law” since the Constitution is “framed in the language of the English common law.”
So why on Earth are some groups trying to rewrite hundreds of years of history and legal precedent? Clearly the birther movement is behind the effort to redefine ‘natural born citizen’ to de-legitimize President Obama, who clearly is a natural born citizen. There’s also a subliminal message that Obama ‘is not one of us.’
Note that I am no fan of Obama, and believe he’s our worst president in modern history. However, I do believe Obama is a natural born citizen per the legal precedent in place at the time our constitution was adopted. We should get rid of Obama, but at the ballot box, not in the courts. Its noteworthy also that the birther movement is batting ZERO in over 100 court cases.
Clearly there are also those who do not like Marco Rubio because he is Hispanic and the son of immigrants. By raising the issue of ‘natural born citizens’ some hope to derail any chance that Marco Rubio might become a VP running mate or a future presidential candidate.
With regards to immigration, there is clearly an effort afoot to generate hostility to groups that are perceived either as immigrants or recent offspring of immigrants. It’s also become acceptable in many quarters to hate unauthorized immigrants, blaming them for a range of social problems. By making an issue of birthright citizenship, now it becomes OK to also hate citizens who are perceived as benefiting from birthright citizenship.