DeVine Law was very sad to hear the latest mantra of the, for lack of a better term, amnesty wing of the Republican Party, especially from the lips of Charles Krauthammer and Marco Rubio, ergo, “I don’t want to repeal the 14th Amendment”. As if ending the policy of granting citizenship to children born on US soil to two illegal alien parents is to “repeal” Section 1 of the amendment.
One can hardly blame many Americans for thinking this is so given the teaching of same for decades. I think some who cling to the policy do so as a romantic idea about America. Well there is plenty of romance without this element. And a Big Lie told over and over does not make it so.
Numerous legal articles, published since Republican presidential candidate Donald Trump released his immigration reform plan last week, establish beyond any doubt that no provision of the Constitution grants such a right even to the children born here to legal non-citizen residents. Sadly a Supreme court case in the late 19th century did the latter.
Congress has the power to broaden the ways in which persons may become citizens, and by their actions and inaction, together with the Executive branch, they have done so. No one wishes to nor could revoke the citizenship of anchor babies already born here. But given the crisis of illegal aliens and legal immigrants as government dependents, high percentages of births, in the prison population of major cities, and emergency room visits, Trump and others have included ending birthright citizenship via parents illegally on U.S. soil in immigration reform plans.
We also need a fence and an end to the chain migration via anchor babies instituted in a 1965 Act sponsored by Ted Kennedy, but we also need to make clear that illegals cannot unilaterally confer citizenship upon their issue when delivered on US soil. Thank you Mr. Trump for forcing a discussion of this and other long ignored immigration issues.
The first clause of the 14th Amendment 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.”
The purpose of the clause was to ensure that freed slaves were deemed citizens after the Civil War. There was no illegal immigration issue at the time and the term “jurisdiction” in this context was that of full “political” jurisdiction so as to exclude the children born here to foreign diplomats and members of Indian tribes with allegiance to their Native American nation. A statute passed years later granted dual citizenship to Indians born here.
No Supreme Court decision in a case brought on behalf of a child born here to two illegal alien parents has ever garnered a majority of votes with the only reference being in a footnote in sole concurring opinion in a 1982 case. The 1898 decision in Wong Kim Ark did (wrongfully in DeVine Law’s opinion) grant birthright citizenship to a child born to two legal temporary foreign residents.
Therefore, should Congress wish to end the practice with respect the children born here of two illegal alien parents, it should be able to do so unless the Court decides to invent a right not in the Constitution as they have with abortion and same-sex marriage.
“What our forefathers with so much difficulty secured, do not basely relinquish.” – William Bradford