Citizenship Clause

“Birthright citizenship, which grants citizenship to anyone born in the United States, regardless of whether the individual’s parents are citizens, is a frequent topic of debate. Is the practice legal and what are the pros and cons of awarding citizenship this way?

The 14th amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to “”all persons born or naturalized in the United States,”” which included former slaves recently freed. In addition, it forbids states from denying any person “”life, liberty or property, without due process of law”” or to “”deny to any person within its jurisdiction the equal protection of the laws.”” By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment. (“”14th Amendment to the U.S. Constitution.””).

This paper will focus on what is referred to as the citizenship clause or aspect of the 14th amendment which states; 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.”” (“”14th Amendment to the U.S. Constitution.””).

The terms in Section 1 have been taken that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee””legally termed jus soli, or “”right of the territory””””does not exist in most of Europe, Asia or the Middle East, although it is part of English common law and is common in the Americas. (“”Congressional Globe””).

A historical context of precedent is described in two Supreme Court rulings of Elk v. Wilkins and United States v. Wong Kim Ark. Elk v. Wilkins established that Indian tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisdiction of the United States. Children born to these Indian tribes therefore did not automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe (‘Elk v. Wilkins””).

In Wong Kim Ark the Supreme Court held that, under the Fourteenth Amendment to the U.S. Constitution, a man born within the United States to foreigners (in that case, Chinese citizens) who have a permanent domicile and residence in the United States and are carrying on business in the United States and who were not employed in a diplomatic or other official capacity by a foreign power, was a citizen of the United States. More broadly, the court characterized the statement, all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States as “”the broad and clear words of the Constitution””, ruling that Wong’s U.S. citizenship had been acquired by birth and had not been lost or taken away by anything happening since his birth (“”United States””).

Opponents argue that eliminating birthright citizenship, which is provided under the 14th Amendment to the U.S. Constitution, could help with illegal immigration.

There is a list of several million eligible people waiting to be admitted as immigrants to our country; some of them have been on that list for many years waiting for one of the numerically limited visas to become available. The birthright citizenship process makes a mockery of those people’s adherence to the rules and of our country’s sovereignty.

The number of United States-born children who were given birthright citizenship despite at least one of their parents being an illegal alien living in the country now outnumbers one year of all American births. (“”Congressional Budget Office””).

A study of legal and illegal Hispanic women who gave birth in San Diego County from 1991-92 revealed that at least 15% of them came to the United States to give birth in this country, and two-thirds of those women said it was so their babies could become citizens. (“”Congressional Budget Office””).

Some argue that it would be contrary to our national interests to end Birthright Citizenship because it would increase the number of illegal aliens in the United States, and consequently, exacerbate the other problems that come with illegal immigration. They also argue that it is legal, under the 14th amendment, and there are several pros to maintaining the present process.

However, these problems already exist with or without Birthright Citizenship and discontinuing Birthright Citizenship would immediately remove one of the magnets which draws people to the United States illegally in the first place.

Each year, 10 percent of all births or almost 400,000 children born are to those who are unlawfully in the United States. Given the more than 11 million illegal immigrants in the country today, this number is likely to continue. (“”Why We Should Have a Debate on Birthright Citizenship””)

These children automatically receive many of the same rights and privileges as United States citizens despite their parents’ illegal status. Birthright citizenship bestows on these individuals billions of dollars in federal benefits each year in the form of Social Security, Medicare, Healthcare, refundable tax credits, nutrition and housing assistance, and eventually work authorization.

Birthright citizenship also rewards illegal immigrant parents. It all but guarantees that they will never be deported. And the parents indirectly reap the government benefits going to their children. (“”Why We Should Have a Debate on Birthright Citizenship””).

The benefit of birthright citizenship is that it can improve societal diversity and that it is based on current law and precedent.

We are already a very diverse nation. By a wide margin, the U.S. has more immigrants than any other country in the world. As of 2015, the United Nations estimates that 46.6 million people living in the United States were not born there. This means that about one-in-five international migrants (19%) live in the U.S. The U.S. immigrant population is nearly four times that of the world’s next largest immigrant destination ??“ Germany, with about 12 million immigrants. (“”Pew Research Center””).

Citizenship provides numerous benefits that cannot be accessed through a temporary visa or illegal immigration.

Birth tourists interpret the 14th Amendment as a means to obtain residency for anyone who travels to the United States on any type of visa, but there are two things to consider.

First, it has become the case under immigration enforcement priorities that a person in the country illegally who has a U.S. citizen child is not a top priority for deportation, unless they commit some sort of violent crime. In a very real sense, giving birth on U.S. soil does allow non-citizens to ignore the limits of their original visa. They can overstay and have a high level of confidence that they will not be deported. (“”Birthright Citizenship: Is it the Right Policy for America?””)

Second, because of existing immigration law, the birth tourist can become a permanent resident of the United States by having their U.S.-born child fill out a petition for them when the child turns 21. Oftentimes the parents will not return to the United States until they are planning on retirement. More and more common, becoming a birth tourist has become a means to obtaining U.S. citizenship.

The practice of granting automatic birthright citizenship allows a temporary admission of one foreign visitor and result in a permanent increase in immigration and grants of citizenship. (“”Birthright Citizenship: Is it the Right Policy for America?””)

The disadvantage of birthright citizenship is that it can encourage illegal immigration. Illegal immigration “”cheapens”” the burden endured by those who gained citizenship legally.

Charles Wood wrote “”Losing Control of America’s Future — the Census, Birthright Citizenship, and Illegal Aliens””. Wood also provided legal counsel to the United States Senate Immigration Subcommittee from 1995-97, 1985 and 1979-82.

In his report; Incentive for illegal immigration – A study of legal and illegal Hispanic women who gave birth in San Diego County from 1991-92 revealed that at least 15% of them came to the United States to give birth in this country, and two-thirds of those women said it was so their babies could become citizens. (“”Losing Control of America’s Future””).

Gaining citizenship this way creates an incentive to break the law. The legal pathway to citizenship is an arduous task and illegality creates a sense of unfairness to those who worked hard to get citizenship legally.

Since there is a limit on people allowed to secure a US immigrant visa each year, there are backlogs and the process can be very drawn out and long. Below are the preferences;

If you are the child (over 21 years of age) of a US citizen, you are in the first preference. The wait for a US visa in this category can be six years.

If you are the child or spouse of a green card holder, you are in the second preference. The wait for a US visa in this category can be five to ten years.

If you are the married child of a US citizen, you are in third preference. The wait for a US visa in this category can be eight years. (“”How Long Does It Take for an Immigrant to Legally Come to the United States?””).

This citizenship law is applied in unintended ways. The 14th amendment was not written with a mind for the birth tourism industry it has created to gain citizenship

The simple meaning of the 14th Amendment means that one must both be born in United States and be subject to the jurisdiction thereof. Since there are two clear requirements, they both cannot be met by simply being born on U.S. soil.

The history of the drafting of the 14th Amendment makes clear that the language “”subject to the jurisdiction thereof”” meant a citizen could not owe allegiance to any other foreign power. This excludes illegal immigrants who are in defiance of U.S. jurisdiction and are citizens of a foreign power. The Supreme Court has never held that the children of illegal immigrants born in the United States are automatically citizens. (“”Ending Birthright Citizenship Does Not Require a Constitutional Amendment””).

The pros and cons of birthright citizenship are varied and with merit. Some see the idea of birthright citizenship as an essential component of societal diversity and inclusion. Others see birthright citizenship as a process that creates an incentive for families who have a long-term vision of circumventing immigration laws. Both sides can point to real-life examples that support their views on this issue.

My grandparents (on my father’s side) are immigrants who emigrated from Italy after the second world war. My grandfather, interestingly enough, served in the Italian navy during that same war. They would both tell us stories of the journey to the United States and how proud they were to be American citizens. The path to citizenship for them was not an easy one. My grandfather was a prisoner of war for almost two years but had nothing but good things to say about how he was treated and his desire to come to the united states. They were both so proud to be American’s but also very proud of their Italian heritage.

How they see present immigration issues has colored my view on these issues as well. They are both far from political, but they see an inherent unfairness in what some people call “”illegal immigrants””. They wonder why all immigration is not conducted exactly the way they did it, legally.

An NBC news story described the situation for me in a very real manner. It led me to think of this policy in a way that struck me as “”gaming the system””.

Lured by the charm of little Havana or the glamour of South Beach, some 15 million tourists visit Miami every year. But for a growing number of Russian women, the draw isn’t sunny beaches or pulsing nightclubs. It’s U.S. citizenship for their newborn children.

In Moscow, it’s a status symbol to have a Miami-born baby, and social media is full of Russian women boasting of their little americantsy. “”It’s really common,”” said Ekaterina Kuznetsova, 29. “”When I was taking the plane to come here, it was not only me. It was four or five women flying here.””

Ekaterina was one of dozens of Russian birth tourists NBC News spoke to over the past four months about a round-trip journey that costs tens of thousands of dollars and takes them away from home for weeks or months. Why do they come?””American passport is a big plus for the baby. Why not?”” Olesia Reshetova, 31, told NBC News.

It’s not just the Russians who are coming. Chinese moms-to-be have been flocking to Southern California to give birth for years.

What they are doing is completely legal, as long as they don’t lie on any immigration or insurance paperwork. In fact, it’s protected by the 14th amendment to the U.S. Constitution, which says anyone born on American soil is automatically a citizen.

The child gets a lifelong right to live and work and collect benefits in the U.S. And when they turn 21 they can sponsor their parents’ application for an American green card. (“”Birth tourism brings Russian baby boom to Miami””).

I am truly not anti-immigration, since the United States is a nation of immigrants. I am second generation Italian/American so I am sympathetic to those wanting to emigrate here and their desire to live in United States, a country my grandfather described as “”the greatest country in the world””. But I also see our country as a country of laws. I understand these laws are subject to interpretation.

However, our government has the power and the duty to say who can be a citizen of the United States and has a responsibility to uphold the Constitution. On the issue of birthright citizenship, it is clear the meaning of the Citizenship Clause, as originally understood, is conflicted. The Congress can and should make the legislative solutions necessary to correct this problem.

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