Conservative Review - Fixing the Birthright Citizenship Loophole: Myth vs Fact

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Immigration Citizenship

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Fixing the Birthright Citizenship Loophole: Myth vs Fact

By: Daniel Horowitz | August 18th, 2015

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If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with US citizenship and guarantee a full access to all public and social services this society provides, and that’s a lot of services. Is it any wonder that two-thirds of the babies born at taxpayer expense in county-run hospitals in Los Angeles are born to illegal alien mothers?”

No, these are not recent comments from Sen. Jeff Sessions (R-AL), Steve King (R-IA) or even Donald Trump.  These were the words of Harry Reid in 1993 when he introduced an immigration enforcement bill, which, among other things, reaffirmed the original and proper reading of the 14th Amendment and qualified the birthright citizenship clause to exclude those born here from illegal alien parents. 

That was 10 million illegal immigrants ago, at a time when the problem of incentivizing illegal aliens was not nearly as grave and consequential as it is today.  Yet, even the leaders of the Democrat Party understood that no sane country would diminish the value of U.S. citizenship and use it to blatantly encourage illegal immigration and the growing birth tourism scam.

Fast-forward one generation, and the costs of not fixing this loophole have been incalculable. And yet not only have Democrats eschewed sanity as it relates to this issue, most of the pseudo-conservative talking heads are balking at proposals—most recently from Donald Trump—to fix this loophole. 

In anticipation of the endless handwringing and misinformation from the conservative intelligentsia and the thumb sucking class, here is a fact sheet on the details behind birthright citizenship and the proposed fix to disincentivize illegal immigration and the birth tourism scam. 

Myth: Unconditional birthright citizenship is guaranteed by the Constitution under the 14th Amendment.

Fact: Actually, the prevailing interpretation of the citizenship clause—now used to grant automatic citizenship to children of both parents who are illegal aliens—is unconstitutional.  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.”  Everyone agrees with the basic concept of birthright citizenship as plainly stated in the first part of this clause.  But in addition to the requirement that a child be born on American soil, the plain reading of the citizenship clause adds another requirement: “…and subject to the jurisdiction thereof…”  As we all know, there are no superfluous clauses in this tightly drafted document we call the U.S. Constitution.  Clearly, the framers were drawing some limitation beyond simply being born on American soil.

Fortunately we need not speculate about their intent.  The intent of the framers was crystal clear.  The purpose of this amendment was to overturn the Dred Scott case and ensure guaranteed citizenship to all former black slaves born in American, and likely living here for generations.  At the same time they wanted to limit citizenship to those subject to our jurisdiction, which excludes those who are not legal permanent residents of this country and certainly illegal aliens.  

The 1866 Civil Rights Act, which was the forerunner to the 14th Amendment, reads as follows: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”  Anyone who is here illegally or on a temporary visa is still subject to the jurisdiction of  his or her own country of origin. 

Sen. Jacob Howard of Michigan, the principle author of the citizenship clause of the 14th amendment, explicitly said that candidates for citizenship must be born here AND not owe allegiance to another authority.  He made it clear that allegiance "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States."  If we can be sure that even children of Indian tribes were excluded from automatic citizenship, certainly temporary visitors from foreign countries were meant to be excluded as well.

The notion that the framers of the 14th Amendment desired to include illegal aliens in birthright citizenship is not only contrary to the explicit language and context of the amendment, it is patently absurd.  It’s as absurd as the notion that the due process and equal protection clauses of that same amendment were designed to mandate the recognition of homosexual marriage.


Supporting birthright citizenship for illegal immigrants is even more radical than supporting amnesty

Myth: You must amend the 14th Amendment in order to change the citizenship law.

Fact: As noted above, requiring that one parent be a legal permanent resident, “subject to the jurisdiction thereof,” is exactly what the 14th Amendment means.  No case law has ever determined this to mean anything else.  In Elk v. Wilkins 112 U.S. 94 (1884), the Court denied a bid for citizenship from an individual who was born on an Indian Reservation and moved to non-reservation territory in the U.S.  Law Professor John Eastman has an impressive and concise analysis of the case law on the citizenship clause and proves incontrovertibly that any limitation on birthright citizenship (such as requiring that one parent be a permanent resident) would not need be enacted through a constitutional amendment.  

Although an activist court in 1898 seemed to apply the birthright citizenship principle found in English Common Law in United States v Wong Kim Ark, which in itself was a reversal of previous precedent and against the plain interpretation of the 14th Amendment, the case only applied to a child of parents who were legal permanent residents.  Liberals wrongly apply this ruling to children of illegal aliens, even though English Common Law explicitly excluded children born to those who illegally occupied territory, as noted by Professor Lino Graglia at a recent House Judiciary Committee hearing.

Sure, a statutory fix would be challenged in the courts, but it doesn’t mean the original meaning of the amendment shouldn’t be clarified and defended. 

 

Myth: Upholding the law in this regard means stripping citizenship from those already deemed Americans.

Fact: Those promulgating this myth are either ignorant or willfully promoting misinformation.  Nobody is proposing stripping citizenship retroactively.  This change would merely ensure that future waves of illegal immigrants are not rewarded with citizenship.  In fact, supporting birthright citizenship for illegal immigrants is even more radical than supporting amnesty.  While the debate over amnesty is about those already here illegally, the debate over unqualified birthright citizenship is about future waves.  Those who oppose this fix are essentially preemptively condoning (to say nothing of inviting) future waves of illegal immigration.  Supporters of amnesty should be the most fervent opponents of birthright citizenship so that their amnesty doesn’t, once again, grow legs and incentivize a new wave of illegal immigration.  What opposition to this fix really shows is that this is not merely a disagreement over what to do with those already here illegally; it’s a debate over whether we are entitled to sovereign borders.  

There is something fundamentally wrong when known drug lord El Chapo Guzman can openly send his wife here to give birth to American citizens.

Myth: Changing birthright citizenship is radical and uncalled for.

Fact: According to the Center for Immigration Studies, only 30 of the 194 countries in the world grant unqualified birthright citizenship (among western nations, Canada is the only other country to offer this status).  No other developed country suffers from the effects of illegal immigration like we do, yet we are the last to debate this issue, lest political correctness render us “radical.”  The true radical view is the one encouraging future waves of illegal immigration despite the past few decades of disaster.  Nearly one in every 10 births in this country is to a mother here illegally.  Why would we continue to incentivize this?

Moreover, nothing undermines the fabric of America and attenuates the value of our citizenship more than the practice of “birth tourism”–a trend most recently seen played out in so-called “maternity hotels” located in Southern California, hosting pregnant Chinese women coming to the U.S. for the sole purpose of giving birth in America to secure automatic citizenship and the benefits that come along with it. There is something fundamentally wrong when known drug lord El Chapo Guzman can openly send his wife here to give birth to American citizens.

A 2011 survey showed that Americans support closing the birthright citizenship loophole by a margin of 61-28.  The position of the political class and the media is the only radical view on this issue. 


Myth: Citizenship is then limited to children of citizens.

Fact: Wrong.  All we are asking is that one parent be a legal permanent resident.  As long as one parent is a green card holder, even if the other parent is an illegal alien, the child would still be recognized as a citizen under the proposed change to the erroneous but prevailing interpretation of the 14th Amendment.  This would welcome all children of immigrants as automatic citizens while weeding out children of illegal aliens and those here on tourist visas.  Many countries have stricter threshold requirements for citizenship

As for children of those residing here on guest worker or student visas, most countries do not recognize them as citizens because they are not real immigrants.  Germany grants citizenship to those born to parents on temporary visas who were living in the country for many years.  Either way, this is a point that can easily be negotiated and compromised on so long as citizenship for illegal aliens and birth tourism scammers is terminated. 

Hence, unqualified birthright citizenship places the keys to our future legal immigration and our welfare system in the hands of illegal immigrants.

Myth: You are a racist if you support a fix of the birthright loophole.

Fact: Merely requiring that one parent be an LPR would prevent illegal immigration from all countries and ethnicities and it would stop the birth tourism from a variety of countries.  This targets nobody in particular.  In reality, it is those who misinterpret the 14th Amendment, which was designed to guarantee citizenship to African-Americans, who are racists because they are abusing the original civil rights efforts and misapplying them to birth tourist scammers. 
  

Myth: Birthright Citizenship is a red herring to stir up the masses.

Fact:  Birthright citizenship stands at the nexus of any true immigration reform that cuts off illegal immigration and makes our legal immigrations system merit-based, disposing of the chain migration model.  These are two stated goals of most politicians (at least publicly).  The only way to move in that direction is by ending unqualified birthright citizenship.

At a clip of 300,000-400,000 babies born in the U.S. each year to parents of illegal status, Pew estimated there are about 4 million “birthright” children in 2009, meaning there are likely over 5 million to date.  Having American-citizen children allows illegal immigrants, a very indigent population, to benefit from the full smorgasbord of welfare programs, as noted by Harry Reid in 1993.  In turn, these children can petition to bring in their relatives when they turn 18, perpetuating the untenable cycle we have helped create.  Hence, unqualified birthright citizenship places the keys to our future legal immigration and our welfare system in the hands of illegal immigrants.  Again, as Harry Reid said, no sane country would do this. 

Daniel Horowitz is the Senior Editor of Conservative Review. Follow him on Twitter @RMConservative

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