Opinion: What Does 14th Amendment of Constitution Say About Birthright Citizenship?

Opinion: What Does 14th Amendment of Constitution Say About Birthright Citizenship?


Opinion: Citizen by Birth? Check the Constitution


Special to AOL News (Aug. 13) -- The Pew Hispanic Center released a study about illegal immigrants and their children on Wednesday that is sure to have talking heads and pundits racing to the airwaves to spew their pet constitutional views about the so-called "birthright amendment" to the Constitution. But while there may be a lot of heat, there probably won't be much light on the issue.

The Pew study found that 340,000 of the 4.3 million babies born in the U.S. in 2008 were children of illegal immigrants, and that of the 5.1 million children of undocumented immigrants, 4 million were born inside the U.S.

The emerging debate is over the first clause of the 14th Amendment that says "All persons born in the United States" are citizens of the United States.

Inevitably, however, the debates degenerate into personal opinions about whether it is good or bad policy to automatically award U.S. citizenship to anyone who is born in the U.S.

Proponents claim that it rightfully and humanely offers the benefits and economic advantages of U.S. citizenship to the child of a parent anywhere in the world who manages to break into the U.S. and have a child.

Opponents claim that such a policy is unfair to the teeming millions patiently seeking legal entry, and encourages law breaking and illegal immigration on a massive scale, unconscionably leading to thousands to agonizing deaths in the deserts of Arizona and California.

But the real question is: What does the Constitution actually say about birthright citizenship?

The pundits who claim such a constitutional right often conveniently ignore the second clause of the 14th Amendment which clearly modifies the first by limiting birth citizenship to those whose parents are already "subject to the jurisdiction of the U.S."

Indeed in 1866, Sen. Lyman Trumbull, the author of this modifying clause (in both the 14th Amendment and the Civil Rights Act), anticipated precisely the kind of far-fetched constitutional claims now being made for birthright citizenship.

Accordingly, he stated for the congressional record that the modifying clause was meant to pertain only to parents who were "not subject to any foreign power." (In this regard, one might note that Mexico does not relinquish jurisdiction over its nationals just because they give birth to children in foreign countries.)

Trumbull's co-author, Michigan Sen. Jacob Howard, was even more specific, stating clearly and unambiguously that the automatic citizenship provision would "not include persons born in the U.S. who were foreigners, aliens ..."

In retrospect, it is surprising that either Trumbull or Howard even felt it necessary to make such a common-sense clarification, inasmuch as it surely must have been obvious to all that the 14th Amendment wasn't intended to bestow automatic citizenship to the children of tourists, foreign ministers assigned temporarily to the U.S., or to the children of mothers in invading armies. (It may be recalled that the Japanese invaded and occupied territory in Alaska during World War II, and the British occupied Washington, D.C., during the War of 1812.)

If in fact the pundits claiming constitutional status for anchor babies were correct that a child born in the U.S. automatically becomes a citizen, it would follow that if a German woman traveling nonstop by air from Germany to Japan gave birth to a child while the plane was 30,000 feet over the U.S -- which is considered U.S. territory -- her child would become a U.S. citizen whether it wanted to be or not, even when the mother never set foot on U.S. soil.

It's worth noting, too, that not a single country in the civilized world (including all of Europe) grants birthright citizenship.

There may be excellent public policy reasons, both humane and economic, why U.S. citizenship should be either granted to, or foisted upon (as the case may be), innocent foreign nationals and tourists who visit the U.S., either legally or illegally.

But the U.S. Constitution is not one of them.

Robert Hardaway is professor of law at the University of Denver Sturm College of Law and the author of 17 published books on law and public policy.