The Fight Over Birthright

Everything you wanted to know about birthright citizenship, but were afraid to ask.

The Mexican governor of Baja California has given birth twice in the United States to ensure that her niños had US citizenship.  Along the southern border, many wealthy Mexicans come into the United States to give birth and, because they show no income in the U.S., that immediately qualifies them for SNAP aka food stamps.  The child is considered a US citizen and entitled to all the benefits any other U.S. citizen was entitled.  I don’t know if it’s still the case since so many things are electronic, but I was told that in Nogales, Arizona there was a huge post office set up with rows and rows of post office boxes so that they wealthy Mexicans could drive over and collect their foods stamps, do their shopping in the U.S., and then go back to Mexico. 

I’m pretty sure that was not the intent the writers of the 14^th Amendment had when they said that “[a]ll 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.”  Of course, that was before we became a welfare state. 

In listening to a radio program, I heard Art Anderson of the Center for Immigration Studies point out that when the Congressmen were writing the 14^th Amendment, they had also written the Civil Rights Act of 1866 that held that, “That 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…”  (emphasis not in the original).  This was clearly aimed at newly freed slaves, not birth tourists from China.  According to Art Anderson, they discussed putting that same language in the 14^th Amendment, but rejected it as being redundant.  Frankly, they couldn’t fathom how the 14^th Amendment would be re-interpreted and misinterpreted in the future. 

I once caught three illegal aliens being driven by a “US citizen” who spoke no English.  He had grown up entirely in Mexico, but his mother gave birth to him in Los Angeles at a hospital there.  He had a US passport, so, I couldn’t do anything with him, but his uncle (one of the aliens he was driving) had an outstanding warrant for child molestation in North Carolina.  The uncle and the others got sacked up. 

I was once talking to a State Department official who had been stationed in Mali.  As an Al-Qaeda linked Islamic group started doing a low level civil war, the State Department official was tasked with making a list of all the U.S. citizens in remote parts of Mali who might need to be evacuated.  I was astonished, “There are Americans living in remote Mali?”  I asked the question picturing some dumb white missionary in a lonely outpost.  He responded, “Well, they aren’t what you or I would consider to be Americans, but they are on paper.”  I knew exactly what he meant when he said that.  When I heard about “Americans” being left stranded behind in Afghanistan after our pull out, I wondered how many of them were named Mohamed. 

There is going to be a big battle coming up in the courts over birthright citizenship.  There are some very good articles (and here) out there on why the 14^th Amendment was not intended to give everyone born on U.S. soil citizenship.  Should illegal aliens who are defying the laws of the United States be considered to be subject to the jurisdiction of the United States since they tried to elude our government?  Should someone coming here on a tourist visa be considered to be under our jurisdiction?  It’s obvious which way the open border lobby wants it to be.  They are making some compelling arguments along the lines of “But, we always did it that way!”  Their big case seems to be United States V. Wong Kim Ark.   Wong Kim Ark was born in California to Chinese parents who were legally here, and he won his case at the time to be considered a U.S. citizen.  As VDare pointed out, Ark was so loyal to the United States that he left his wife and kids in China, then retired there. 

Interestingly, Mark Levin goes so far as to argue that the 14^th Amendment doesn’t even allow the children of legal permanent residents to become U.S. citizens. 

Levin says that Senator Jacob Howard (primary writer of the amendment) explained that jurisdiction meant an allegiance to the United States, not just a  presence. (I wonder if this interpretation would get rid of dual citizenship too).

Ostensibly, even if a child born of illegal alien parents is to be considered a US citizen, the child is supposed to wait till they are 21 years old to petition for their parents to come here.  The way the courts get around that is by saying that the new born baby would suffer undue hardship if their parents were deported and they parole in the parents for humanitarian reasons.  Hence, they have an anchor baby. 

It does pose some interesting dilemmas if birthright citizenship is repealed.  For the Border Patrol, we often were doing transportation checks.  One of the quickest ways to determine if a person is a US citizen is if they were born here.  We were taught at the academy to simply ask where a person in what country they were born.  If they make a plausible case that they were born in the U.S. then we stopped the questioning and moved on to the next person.  (Countless times I asked what country a person was born in and was told Houston.  I didn’t know Houston was its own country).  It’s going to be a whole lot harder to determine alienage.  Will people born before Trump’s executive order still be considered U.S. citizens?  After all, a lot of them already have U.S. passports.

The other dilemma, it’s not fair! 

There are roughly 3.6 million DACA recipients.  They weren’t even born here!  Many of them came to the United States as minors, some as old as 17.  Are they not to be deported while someone who has been in the U.S. since birth is? 

Axios has an article about 18 Republican congressmen essentially making a similar argument to the one above, citizens must have loyalty to the government. The congressmen go all the way back to English case law, Calvin’s Case, saying that there has to be a total allegiance to the United States, and not just being subject to U.S. laws.

I’m all for ending birthright citizenship.  If it were up to me, it would be retroactive.  This would cause a lot of passports to be cancelled.  I don’t deny that this would be a real mess to go through trying to determine who is here legally and who isn’t.  There would be a lot more court cases. 

We can expect the left to be fighting against the repeal of birthright citizenship with everything they’ve got.  It would seriously curtail a lot of illegal aliens coming here.  Believe me, they just about all know of birthright citizenship and how it can prevent them from being deported.  The left knows that it would cause confusion, and they are willing to exploit that. 

At the U.S. Border Patrol Academy, we learned there were two primary ways to be born a U.S. citizen; Jus Solis, law of the soil, where you are born on American soil.  The other is Jus Sanguinis, the law of the blood, where you are considered an American because your parents were Americans.  This is why people like John McCain (born in Panama while his father was in the U.S. Navy), Ted Cruz (born in Canada to an American mother), and Barak Obama (born who knows where, but to an American mother) can all be considered natural born U.S. citizens. 

In any case, Kamala Harris was born in the U.S., but neither of her parents were citizens of the United States.  It would be so delicious to strip Kamala Harris of her citizenship. For that reason alone birthright citizenship should be done away with (and I’m only partly joking). 

In reading up on Kamala’s case, Snopes says that her mother was not a diplomat, hence, Kamala is a U.S. citizen.  This goes back to 14^th Amendment author Senator Jacob Howard who wrote, “This 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, but will include every other class of persons.  It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”  Of course, Howard’s wording did not settle the “great question of citizenship.”  Instead, it was interpreted as meaning only the children born to diplomats could not become U.S. citizens at birth.  Perhaps, he should have written, “This will not include persons born in the United States who are foreigners.  This will not include persons born to aliens.  This will not include those who belong to ambassadors…”  Instead, he left it as very confusing.  You can interpret it two different ways, but I’m pretty sure that if Howard could see an illegal alien coming across the border with the intent of giving birth and go on welfare, he would have screamed “THAT WAS NOT MY INTENT!” 

The left will be making the argument that the writers of the 14^th Amendment knew about foreigners because they debated the Chinese question in California.  In this article in favor of birthright citizenship, the author sort of contradicts themselves by saying that in the case of Wong Kim Ark “it explained that the phrase ‘subject to the jurisdiction thereof’ means someone who must obey U.S. law, and hence applies to the children of aliens.”  By this logic, illegal aliens are not obeying the law, so, that would mean their children are not citizens.

Two of the Senators who debated the 14^th Amendment were Senator Conness who was for it, and Senator Cowan, who voted against it.  “Cowan had specifically worried about automatically granting citizenship to the children of those had ‘trespassed,’ indicating that he interpreted the clause as applying to the children of immigrants who entered a state unlawfully, anticipating future concerns over the children of undocumented immigrants. But Conness, rather than implying that Cowan had misinterpreted the amendment, argued that it would not be a common enough problem to make birthright citizenship undesirable.”  (From the same article in the Niskanen Center).  So, patriotic Senator Cowan correctly foresaw the problem, and that it would become common enough to be a problem if it wasn’t already. Senator Conness simply said that it wasn’t a big enough problem to worry about. Maybe that was true back in 1866, but that’s not true today.

We know that later on Congress would agree with Cowan in a sense because they passed the Chinese Exclusionary Acts.  Quantity of foreigners does matter. (Ask NumbersUSA).

In any case, this will be taken up to the Supreme Court.  Unfortunately, we have only two reliable conservatives (Thomas, Alito), one sometimes conservative (Gorsuch), a man who used to be conservative but was broken during his confirmation hearing (Kavanaugh), an unprincipled moderate (Roberts), one conservative on abortion and nothing else (Amy Coney Barrett), two America hating leftists (Kagan and Sotomayor), and one radical leftist who was installed on the bench thanks to a fraudulent election (Ketanji Brown Jackson).  Buckle up, it’s going to be a proverbial war over this, and our side may not win.