Birthright Citizenship and The Fourteenth Amendment

It's time for a pop-quiz! Who said, "Mr. Gorbachev, tear down this wall!" Ronald Reagan made that challenge. Who said, "Give me liberty, or give me death!" Right. Patrick Henry. Finally, who said, "Being an American is not a matter of blood or birth. It's a matter of faith." President Obama made that statement.

Is citizenship a matter of faith, as the President said? I believe that American citizenship is a matter of settled law. The U.S. Constitution states in Article 1, Section 8, that Congress (the lawmaking branch of the three branches of government) has the authority to regulate the terms of citizenship. When the Constitution was being formulated, the Founders had to grapple with the details of forming a new nation. Having been Englishmen prior to the Revolution, the Founders had to clarify who could be an American citizen.

Some say that any child born in the United States, even if his parents are in the U.S. illegally, should be entitled to birthright citizenship. Although Congress passes law in the three branches of government, the judicial branch has effectively made new law by establishing a precedent for continued birthright citizenship. Since we see so many expectant moms crossing the border just in time to give birth, it is clear that American citizenship is an attractive benefit to illegal immigrants. These newborns are given automatic citizenship, and serve as an "anchor" for the family's future.

The Civil War was fought over the question of slavery. Not all freed slaves were considered full citizens even after their emancipation. The question of who is an American citizen had to be settled, and was addressed in the Fourteenth Amendment.

The Civil Rights Act of 1866 was written to protect the status of freed slaves. It opens, "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..." The first part, "not subject to any foreign power", explains the issue of citizenship. The language clearly states that allegiance to a foreign power nullifies citizenship by right of birth. If a person is loyal to a foreign power, and is subject to it, that person cannot be a U.S. citizen.

The critical portion of that statement is the clause "...and subject to the jurisdiction thereof..." It is clear that only those who are subject to the jurisdiction of the United States of American are to be granted citizenship privileges. The Fourteenth Amendment 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."

Those who argue against birthright citizenship say that the Fourteenth Amendment requires a child's parent to be "subject to the jurisdiction" of the United States in order for the newborn to attain American citizenship. Since minor children remain subject to their parents, and if the parents are foreign nationals, the child cannot be considered an American by birth. The Fourteenth Amendment jurisdiction clause negates birthright citizenship.

Constitutional language lays out the path to American citizenship, so how was a judicial precedent set in favor of birthright citizenship? The Supreme Court, in 1973, heard a New York case, Sugarman vs. Dougall. The state of New York terminated four legal resident aliens from federal jobs because they lacked U.S. citizenship. The workers filed suit against the state, and the Supreme Court (last on the list of the three branches of government) ruled that American citizenship could not be a determining factor in hiring for government jobs.

In 1982, the Supreme Court also threw out a Texas statute that denied children of undocumented aliens from attending public schools. The Court ruled that public education was so important to society, that even if a child's parents had come to the country illegally, the child was entitled to free education. Now, any child born on American soil is given citizenship as a right of birth.

"Anchor Babies" and Birthright Citizenship are at the top of today's news. Well-meaning Americans disagree about birthright citizenship from a compassion standpoint, but the Constitution is clear about the requirements for citizenship. A person must be born or naturalized in the United States, and subject to the jurisdiction thereof, to be citizens. Until Congress (mentioned first in the Constitution in the list of usa branches of government) passes a different law, rulings by the Supreme Court, or any other court, that grant citizenship to people who are subject to a foreign nation, are a violation of the Fourteenth Amendment.

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