The question of birthright citizenship

The Fourteenth Amendment to the U.S. Constitution begins, “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. …”

This makes the United States one of 30 countries to give birthright citizenship to children of non-citizen immigrants.  In the U.S. case, citizenship has been given to children born in the United States to parents who are in the country illegally – which, however, has not prevented the deportation of the parents with their children.

The purpose of the Fourteenth Amendment was to grant rights of citizenship to the newly-freed slaves, and to forestall any laws by the Southern white people to deny them citizenship.  But when the amendment was being debated, its application to immigrants was discussed.

The sponsors intended birthright citizenship for children of any immigrants who had settled permanently in the United States, but not for the children of diplomats and other temporary foreign residents, who were not subject to the jurisdiction of the United States.

The question of illegal immigrants did not come up because in 1868, when the amendment was ratified, there was no such thing as an illegal immigrant in the United States.  When the United States was founded, immigration was fostered, not restricted.  One of the grievances against the British Crown in the Declaration of Independence is that “He has endeavoured to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither …”

The first law restricting immigration was enacted in 1875, when a law was passed forbidding immigration of convicts and of Chinese contract laborers and prostitutes.  There were no numerical restrictions on Latin American immigration until 1965.

I don’t think it a coincidence that all the nations granting birthright citizenship (indicated in black on the map above) are in the Western Hemisphere.  All these nations share a history of having vast lands and resources, a shortage of labor and a desire for immigration to alleviate that shortage.

The constitutional question of whether birthright citizenship applies to children of illegal immigrants would seem to depend on whether the courts rule they are subject to the “jurisdiction” of the United States.

It seems illogical that families who enter the United States in violation of its laws should have a right denied to those who obey our law, get in line and wait.  At the same time the denial of birthright citizenship sometimes imposes cruel hardships.  There are people born in the United States, who have known no other country besides the United States, in some cases honor students in high school or college, are subject to deportation to countries they have never known and to which they feel no allegiance.

I don’t have a good overall answer to this within the framework of current law and enforcement, except to give judges latitude to decide questions according to individual circumstances.  The law of birthright citizenship has to be a part of rethinking of our immigration system as a whole.

Click on Birthright Citizenship in the United States: A Global Comparison for background information and the source of the map.  The authors of the study state that the other 29 countries that offer birthright citizenship give it to children of illegal aliens, but I wonder whether this is true.

Click on Birthright citizenship in the United States wiki for background information from Wikipedia.

Click on List of United States immigration legislation wiki for Wikipedia’s chronological summary of U.S. immigration laws.

Click on Jus Soli wiki for Wikipedia’s account of birthright citizenship internationally.

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