photo credit: Life Magazine
I have a summertime pop-quiz for you. How about this one, "Mr. Gorbachev, tear down this wall!" Who said, "Give me liberty, or give me death!" Right. Patrick Henry. Ronald Reagan made that challenge. Finally, who said, "Being an American is not a matter of blood or birth. It's a matter of faith." That statement was made by Barack Obama.
When it comes to citizenship and who can be an American citizen, is it a matter of faith, as the President stated? Or is it more accurate to say 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 make laws governing citizenship. At the time the Constitution was written, the Framers were just coming to terms with all the details of forming a new nation. They all had been Englishmen before the Revolution, but now, they were Americans. The Founders had to settle the question of whom else could become an American.
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, in part, over the great question of slavery. Slaves were not considered fully human by many of their captors, let alone American citizens. After the slaves' emancipation, there were some who would not recognize their citizenship, nor the citizenship of their offspring. This was an argument that had to be settled. The question of who was entitled to American citizenship was addressed in the Fourteenth Amendment to the Constitution.
The Civil Rights Act of 1866 was passed to clarify the status of freed slaves. It begins, "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 clause "not subject to any foreign power" is salient when examining the issue of citizenship. The Amendment's language clearly points to allegiance to America as the key to citizenship by right of birth.
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." The portion of that statement that is critical, 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 considered citizens.
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.
Birthright citizenship and "anchor babies" are a hot topic in today's news. Liberals and Conservatives can disagree about birthright citizenship, but the Constitution is clear about who is a citizen. Only those born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens. Until the Congress passes a law to the contrary, any rulings by the Supreme Court, or any other court, are in violation of the Fourteenth Amendment.
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