Born in US as Citizen: Constitution Guarantees Birthright - The Ledger

Published: Saturday, January 29, 2011 at 12:01 a.m.
Last Modified: Friday, January 28, 2011 at 5:34 a.m.

Republican legislators from Pennsylvania, Arizona, Oklahoma and several other states plan to introduce bills to restrict "state citizenship" -- and the issuance of birth certificates -- to children with at least one parent who is a permanent resident of the United States.

They say they want to discourage illegal immigration. A less charitable view says they're trying to capitalize on anger about immigration. In either case, they're trying to legislate away the 14th Amendment.

Ratified in 1868, three years after the Civil War ended, the 14th Amendment ensured that newly freed slaves and their descendants enjoyed U.S. citizenship. It says that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" are U.S. citizens.

EXCLUSION PROHIBITED

The Republican legislators are focused on the phrase "subject to the jurisdiction thereof," arguing that it doesn't include illegal immigrants and, therefore, their U.S.-born children aren't guaranteed American citizenship. However, the U.S. Supreme Court rejected that argument in 1898, when it blocked efforts to use the Exclusion Act -- the only law in U.S. history that explicitly prohibited entry into the country, or naturalization based on race or nationality -- to deny U.S. citizenship to children born to Chinese parents.

The exceptions carved out by the court involve children born to foreign diplomats or enemy forces engaged in a hostile occupation of U.S. territory, not children born to parents who crossed the border illegally.

One of the many myths about immigration is that having children makes it easier for people who entered the country illegally to remain. In fact, children must reach the age of 21 before they can petition for parents to legally join them in the country, and the process can take decades to complete.

There are important immigration-related issues for lawmakers to address, including workforce needs, border security and, yes, a path to legalization for the estimated 12 million illegal immigrants already living in the United States. None of those issues will be addressed by playing games with the Constitution.

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