Birthright citizenship looming as a campaign, and constitutional issue

Scott Bomboy

Should everyone born in the United States automatically become a citizen? It’s a constitutional and political question that probably will get some attention as the current presidential campaign unfolds.

Wong Kim Ark

Wong Kim Ark

The birthright citizenship debate was recently brought up in Congress when David Vitter and Steve King introduced legislation that would restrict who is considered a U.S. citizen by birth.

And on Wednesday, GOP candidate Chris Christie told a radio program that he would reconsider qualifications when it came to birthright citizenship.

“I think all this stuff needs to be re-examined in light of the current circumstances,” Christie said. “[Birthright citizenship] may have made sense at some point in our history, but right now, we need to re-look at all that.”

One of Christie’s rivals, John Kasich, told CNN this week that he’s reversed his position on birthright citizen, which he wanted to end for illegal immigrants as a member of Congress. “I think we need to get over that. I’m not for it anymore. Let these people who are born here be citizens and that’s the end of it. I don’t want to dwell on it,” he said.

And on August 17, Donald Trump came out against birthright citizenship in a one-paragraph statement in a policy paper about immigration.

“This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said “no sane country” would give automatic citizenship to the children of illegal immigrants,” said Trump.

The statute proposed by Vitter and King directly tackles a constitutional barrier involving citizenship rights for anyone born in the United States or its incorporated territories.

“It’s astounding that we’re allowing foreign citizens to exploit the loopholes of our immigration system in this manner, and Congress has the obligation to stop it,” Vitter said in a statement that accompanied the legislation in March, which is stalled in Congress. “This practice comes down to a fundamental misunderstanding of the 14th Amendment, and we can stop the massive problem with some simple clarification.”

Specifically, the first sentence of the 14th Amendment reads, “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.”

Vitter has argued that the Citizenship Clause should be interpreted to allow Congress to limit birthright citizenship for illegal aliens by statute – and not by the constitutional amendment process.

In a 2011 op-ed, Vitter pointed to a Supreme Court ruling called Elk v. Watkins from 1884 that pertained to an American Indian citizenship claim.

“The original meaning of the [jurisdiction] phrase means not owing allegiance to another country, because it referred to the jurisdiction that a foreign government maintains over its citizens. This is why the Supreme Court held in Elk v. Wilkins (1884) that a Native American was not a citizen merely by reason of his birth within the United States, because he ‘owed immediate allegiance to’ his tribe and not the United States.”

“Congress has the authority and the obligation to reverse this practice,” Vitter said.

However, there is a long history of court decisions and precedents about the theory that most people physically born in the United States qualify as a citizen.

The Congressional Research Service looked at the issue in two separate reports. In 2011, legislative attorney Jack Maskell wrote about birthright citizenship in the larger context of citizenship claims involving John McCain and Barack Obama.

Maskell pointed to the British common law concept of jus soli (meaning “law of the soil”) as the precedent for the 14th Amendment’s Citizenship Clause and a later Supreme Court decision, United States v. Wong Kim Ark.

“There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as ‘natural born’ subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation),” Maskell said.

In 1898, Justice Horace Gray’s majority opinion in Wong Kim Ark made it clear that the 14th Amendment’s Citizenship Clause fell in line with British and American common and settled law when it came to people born in the United States as having claims to citizenship, with the exceptions of children of foreign ministers, enemy combatants on American soil and people on foreign public ships.

Gray said that Wong Kim Ark, having “a permanent domicil[e] and residence in the United States,” became ”at the time of his birth a citizen of the United States,” even though his parents were Chinese citizens.

Gray also dismissed the relevance of the Elk decision to birthright citizenship in this case, and he also stated that the term “subject to the jurisdiction thereof” pertained to citizenship claims made by the children of diplomats and hostile combatants.

A second CRS legislative attorney, Margaret Mikyung Lee, looked specifically at birthright citizenship in 2010 and drew similar conclusions about the history of birthright citizenship laws. But Lee siad that some arguments were being made that the Wong Kim Ark court and the 14th Amendment’s drafters didn’t consider the concept of illegal immigrants, because that wasn’t a requirement to do it at the time.

“The [Wong Kim Ark] holding does not make a distinction between illegal and legal presence in the United States, but one could argue that the holding is limited to construing the Fourteenth Amendment in the context of parents who are legal permanent residents,” Lee said. “However, the Court’s own discussion of the common law doctrine of jus soli and the Fourteenth Amendment as an affirmation of it indicates that the holding, at the least, would not be limited to permanent legal residents as opposed to nonimmigrant, transient, legal aliens and currently accepted law would also weigh against this argument.”

Vitter and King’s proposal would narrow the Birthright Citizenship clause to children of immigrants with green cards or immigrants in the active military, in addition to children who have at least one parent who is an American citizen.

Back in 2011, candidate Rand Paul supported Vitter’s bill. But there is little talk among the current candidates about birthright citizenship, and the topic wasn’t brought up in the current Fox News debates. It was raised several times in the 2011-2012 GOP presidential primary debates.

And there is a separate situation brewing in Texas about birthright citizenship, where Mexican mothers have sued the state for not issuing birth certificates to their U.S.-born children.  The state claims the parents don’t have valid identification; the mothers say the state accepted documentation in the past it is now rejecting.

Scott Bomboy is editor in chief of the National Constitution Center.

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