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  • Article: Changing Birthright Citizenship Doesn’t Need a New Constitution. By Peggy Sands Orchowski, Ph.D

    Changing Birthright Citizenship Doesn’t Need a New Constitution

    by


    It seems like a no brainer. After all, it is written in the first sentence of the 14th amendment of the United States Constitution that anyone born in the United States is a citizen. How could anyone refute that? And everyone knows that it is almost impossible to change the constitution. It can take years, often decades to do so.

    So how can Donald Trump and almost all the U.S. Republican presidential candidates say that they will end, probably in the next year or two, birthrights citizenship for babies born in the United States to illegal immigrants and to tourists? Are they just spinning and completely out of touch with reality?

    Actually, they’re not. There is perhaps no other issue in immigration that is so misunderstood, misquoted and misexplained by just about everyone in the media than birthrights citizenship.

    To understand the possible options for changing it outside of a constitutional proposal or convention, you need to read and understand every word in that first sentence of the 14th amendment:

    “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”.

    And subject to the jurisdiction. These five most significant words are particularly important because it signals that in order to get birthrights citizenship, TWO requirements have to be met: not just be born in the U.S. but also be “subject to its jurisdiction.” That generally means, subject to U.S. laws. ALL its laws. Including immigration laws. And their enforcement.

    Why was that phrase written? If the framers of the amendment had wanted to just say “anyone born in the U.S. is a citizen” why didn’t they? Why add that phrase, especially as federal immigration law did not exist in 1868.

    Was it written to give a federal right of citizenship to babies born to non-citizen immigrants? Not really. Federal immigration entry regulations and management weren’t even codified until 1882. There were no national immigration visas; no legal, temporary and illegal immigration statuses; no immigration bureaucracy; no national immigration laws. The first section of the 1789 constitution gives the federal government the “right of naturalization”. But operationally, the states, not the feds, decided who was welcome, who wasn’t and who would get citizenship (ironic, no?).

    Today the question has become: do people who have no legal permit nor any right to reside and work in the United States, no authorization, visas nor legal documents - are they considered legally to be “subject to the jurisdiction” and therefore have citizen birthrights for their U.S. born children? It’s a complicated question.

    The truth is that immigration itself is not a civil right, nor even a human right. Clearly there is no civil right for any immigrant to enter and reside in the country illegally. Illegal immigrants actually can claim very few of the civil rights that legal immigrants have; in the legal sense, all immigrants are not equal because different immigration status have different rights.

    To complicate matters further, increasingly well-meaning enthusiastic advocates for illegal immigrants aggressively refuse to enforce and even waive laws that may lead to their arrest, detention and deportation of illegal, undocumented and unauthorized immigrants – even of those who commit multiple misdemeanors and felonies including violent felonies. Increasingly, illegal immigrants are getting “sanctuary” and waivers from numerous laws that on the other hand, all legal immigrants and citizens absolutely have to obey or face punishment. It can be argued then that illegal immigrants in over 200 cities and in many states and of certain categories are so protected from law enforcement that it must be questioned if indeed they really are subject to U.S. jurisdiction. If not, then clearly they are not eligible for birthrights citizenship.

    In 2015, Senator David Vitter (R-LA) and Congressman Steven King (R-IO) introduced bills (S45 and HR140) to do away with birthrights citizenship for children born in the United States to parents BOTH of whom are in the country illegally or on a permit for less than a year. The bills are only one-and a-half pages long and are easy reads. They are NOT retroactive. The bills have the right to be discussed civilly in bipartisan Congressional hearings and be subject to a vote.

    Now that you know that there are indeed historical options to changing the terms of the 14th amendment’s birthright citizenship without going through a change to the constitution, you can better discuss and decide how you feel about the rights of illegal immigrants. Then you can tell your Congressional representative what you think s/he should do.

    Reprinted with permission.


    About The Author

    Peggy Sands Orchowski Ph.D. has been a credentialed Congressional Correspondent in Washington, DC for the last 10 years and author of the new book, The Law That Changed The Face of America: The Immigration and Nationality Act of 1965.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 8 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      There is only one question to ask with relation to this article: Does the author have any idea whatsoever how ignorant, opinionated and totally out of touch with Constitutional reality her article is? Or is her article just a spoof, trying to make fun of what is actually a very serious issue?

      How can anyone be so presumptuous as to claim to understand the phrase "subject to the jurisdiction" in the 14th Amendment without even mentioning the landmark Supreme Court cases of U.S. v. Wong Kim Ark (1898) and Plyler v. Doe (1982), which have discussed this issue so exhaustively?

      This article may respond to the political needs of Donald Trump and his supporters. But serious legal scholarship it is not. I think even Donald Trump would be, or should be, embarrassed to cite it in support of his absurd contention that the 14th Amendment does not mandate birthright citizenship for all US-born children (except the children of accredited foreign diplomats), regardless of their parents' immigration status or lack of it.

      I have written extensively about Wong Kim Ark in my own ilw.com posts. If Ms. Orchowski is serious about learning about the 14th Amendment to the Constitution and birthright citizenship, instead of just trying to score political points, she is welcome to study these cases and to read my posts.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by ImmigrationLawBlogs View Post
      There is only one question to ask with relation to this article: Does the author have any idea whatsoever how ignorant, opinionated and totally out of touch with Constitutional reality her article is? Or is her article just a spoof, trying to make fun of what is actually a very serious issue?

      How can anyone be so presumptuous as to claim to understand the phrase "subject to the jurisdiction" in the 14th Amendment without even mentioning the landmark Supreme Court cases of U.S. v. Wong Kim Ark (1898) and Plyler v. Doe (1982), which have discussed this issue so exhaustively?

      This article may respond to the political needs of Donald Trump and his supporters. But serious legal scholarship it is not. I think even Donald Trump would be, or should be, embarrassed to cite it in support of his absurd contention that the 14th Amendment does not mandate birthright citizenship for all US-born children (except the children of accredited foreign diplomats), regardless of their parents' immigration status or lack of it.

      I have written extensively about Wong Kim Ark in my own ilw.com posts. If Ms. Orchowski is serious about learning about the 14th Amendment to the Constitution and birthright citizenship, instead of just trying to score political points, she is welcome to study these cases and to read my posts.

      Roger Algase
      Attorney at Law

      Your two court decisions are good, but common sense can also refute this claim. As an immigration officer I had the authority to arrest illegal aliens. Being subject to arrest means they were subject to the jurisdiction of the United States. Diplomats cannot be arrested because they are not subject to the jurisdiction of the United States. In 1868 the concept of jurisdiction was well understood. The language in the 14th Amendment differed from the language in the Civil Rights Act of 1866, which exempted children of all foreign visitors from citizenship. The change in language signals the intent to include what are are now illegal aliens, even though there were no illegal aliens in 1868.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Retired INS's analysis is entirely correct. Ms. Orchowski should have done some basic research into the language and history of the 14th Amendment before publishing her article. She has done a disservice to ID readers and to anyone who has a serious interest in the subject of birthright citizenship. Let us first take a look at the word "jurisdiction". It comes from two Latin words which, literally, mean "law" (ius, iuris) and "saying" (dictio). Therefore "iuris dictio" means to say what the law is. The New College Latin and English Dictionary (Revised Edition, 2007) translates this phrase as "administration of justice". Therefore: "subject to the jurisdiction" of the United States means nothing more or less than "subject to the administration of justice,", i.e. the laws, of the United States. This, essentially was the holding of the US Supreme Court in Plyler v. Doe, (1982).

      At the time when the 14th Amendment was adopted in 1868, most educated people in the United States, including lawmakers, had at least some background in Latin. It is inconceivable that they did not know the origin and meaning of the word "jurisdiction".

      Ms. Orchowski recognizes this herself when she writes "That [jurisdiction] generally means, subject to U.S. laws." But then she goes on to say: "ALL its laws. Including immigration laws. And their enforcement." Certainly, no one would argue with her when she says that being subject to the jurisdiction of the United States means all of its laws, but there is nothing in the above phrase which meant to put immigration laws into any special category.

      As Ms. Orchowaki also points out, there were no immigration laws of the United States in 1868. Therefore it would be absurd to say that the writers of the 14th Amendment intended birthright citizenship for children born in the United States to be conditional upon legal immigration status or lack of it. It would be even more absurd to say, as she does, that birthright citizenship was meant to be conditioned on the extent to which the immigration laws, or any other laws, were being enforced.

      To give one example, the post Civil War reconstruction period was a time when lynchings of black people in the South were all too common. The perpetrators could be sure, continuing well into the 20th century, that they would never be prosecuted. Does that mean that were not US citizens at birth because whatever laws there may have been on the books against murder or conspiracy to murder were never enforced against them?

      The phrase "subject to the jurisdiction" refers to anyone who is not exempt from the laws of the US, both civil and criminal, i.e. someone who is immune from being either sued or prosecuted. This means foreign diplomats and their families only.

      Ms. Orchowski writes: "It can be argued then that illegal immigrants in over 200 cities and in many states and in certain categories are so protected from law enforcement that it must be questioned if they really are subject to US jurisdiction." This is a purely political statement, not a legal one. Over 2 million unauthorized immigrants have been deported since President Obama took office. Tens of thousands of unauthorized immigrants are currently incarcerated for immigration violations. If these immigrants were not subject to the jurisdiction of the United States, who deported them? Who is locking them up?

      Does the fact that 11 or 12 million unauthorized immigrants in the US have not yet been deported or that we do not yet have a Berlin Wall along the Mexican border mean that the immigration laws of the US are not being enforced, or that all non-citizens in the US are immune from the operation of our immigration laws? Donald Trump and Steve King may argue that in order to attract right wing votes, but no lawyer could make that argument seriously.

      Ms. Orchowski argues that immigration itself is not a civil right or a human right. Even if there were any validity to this highly questionable statement, this has nothing to do with the 14th Amendment, which, in essence says that anyone born in the US and subject to US law is a US citizen by birth. Mrs. Orchowski also misses the point of U.S. v. Wong Kim Ark (1898), where the Supreme Court, in an exhaustive study of English and early American Common Law of birthright citizenship going back to the 14th Century which has never been equaled before or since, held that the authors of the US Constitution meant to adopt the venerable English doctrine that citizenship depends on place of birth, not the status of one's parents.

      Therefore, the court ruled that the fact that the foreign-born parents of the US-born respondent in that case were barred by law from ever becoming US citizens themselves under the Chinese exclusion laws (yes, by that time, the US did have an immigration law - was it one to be proud of?) did not affect the birthright US citizenship of their child.

      This is why making broad brush statements about the 14th Amendment for purely ideological or political reasons without actually looking at the relevant language, background or decisions contributes nothing to a discussion of this issue except distortion and misunderstanding. One would hope that Ms. Orchowski will do some serious study and research before writing anything further about this topic.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      I like the use of the Plyler decision. It did not authorized illegal alien children to remain in the U.S. Instead, it said that as long as they are here, both the children and society are better off if the children attend school. While not stated in the decision, the court understood that public schools are generally funded by property taxes. When illegal aliens pay rent, they indirectly pay property taxes. Therefore, their children should have a right to attend public schools. Both the children and the parents are subject to the jurisdiction of the United States, which is the reason the children have a right to attend public schools. The logic is so simple I fail to understand why my fellow Republicans disagree with this good decision.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      I agree entirely with Retired INS in not being able to understand why so many Republicans are unwilling to follow the plain and obvious interpretation of "subject to the jurisdiction" of the United States in the 14th Amendment according to Plyler v. Doe (even though that case admittedly did not involve the issue of birthright US citizenship). Is it because many Republicans are more interested in demagoguery and stirring up anti-immigrant prejudice over this issue than they are in dealing with it seriously from a legal point of view?

      Donald Trump insists that some "very good lawyers" have told him that birthright citizenship for everyone born in the US, regardless of parents' immigration status, is not enshrined in the 14th Amendment. But he hasn't told us who these "very good lawyers" are. This is very uncharacteristic of The Donald, who is normally not reluctant to name names.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by ImmigrationLawBlogs View Post
      I agree entirely with Retired INS in not being able to understand why so many Republicans are unwilling to follow the plain and obvious interpretation of "subject to the jurisdiction" of the United States in the 14th Amendment according to Plyler v. Doe (even though that case admittedly did not involve the issue of birthright US citizenship). Is it because many Republicans are more interested in demagoguery and stirring up anti-immigrant prejudice over this issue than they are in dealing with it seriously from a legal point of view?

      Donald Trump insists that some "very good lawyers" have told him that birthright citizenship for everyone born in the US, regardless of parents' immigration status, is not enshrined in the 14th Amendment. But he hasn't told us who these "very good lawyers" are. This is very uncharacteristic of The Donald, who is normally not reluctant to name names.

      Roger Algase
      Attorney at Law
      Sometimes both political parties lie for their own benefit. The best example is California's proposition 187 in 1994, which would have forbidden illegal alien school children from attending public schools. The idea was to get the Plyler decision before a new Supreme Court. The Republicans lied by making it about open borders (which it was not). Democrats lied by saying it was racist, it really wasn't about race. I asked the INS for permission to openly oppose it. Permission was denied, partly because the stupid politicians in Washington (democrats at that time) didn't understand the issue. In 1875 the Supreme Court ruled that immigration is the sole responsibility of the federal government. Therefore, Plyler aside, Proposition 187 was unconstitutional because California had no legal right to impose immigration restrictions, nor the authority to even decide who was legal and who was not. At that time the INS had a policy not to go into schools to make arrests, so deportation of the children was off the table. Additionally, in 1994 California had nearly 300,000 undocumented school children whose parents had been granted amnesty, but the children did not qualify. What do you do with 300,000 children whose parents are here legally? To whom do you deport them? Neither the republicans nor the democrats understood the issues relating to Proposition 187. I spoke with several Hispanic activist groups and gave them this information. Their reply, "We only want to oppose this because it is racist. How else can we get people to donate to our organization?"
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      The principle that immigration enforcement is a matter for the federal government only, not the states, was upheld by the Supreme Court more recently in Arizona v. US (2012) striking down parts of that state's infamous (and, yes, racist) SB 1070 law. Where this leaves the legality of Sanctuary Cities is another question that I, for one, find somewhat troubling. Sooner or later, it is bound to come up in court.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by ImmigrationLawBlogs View Post
      The principle that immigration enforcement is a matter for the federal government only, not the states, was upheld by the Supreme Court more recently in Arizona v. US (2012) striking down parts of that state's infamous (and, yes, racist) SB 1070 law. Where this leaves the legality of Sanctuary Cities is another question that I, for one, find somewhat troubling. Sooner or later, it is bound to come up in court.

      Roger Algase
      Attorney at Law
      Nothing in the law requires state and city law enforcement to determine immigration status. In fact, there are often good reasons for local police not to get involved in immigration issues. Illegal aliens must be able to report crimes without fear of being deported. However, this was not the case in San Francisco when an illegal alien killed Kate Steinle. Juan Francisco Lopez-Sanchez had been in federal custody and would have been deported if San Francisco had not asked for custody so they could prosecute him for an old drug charge. The transfer of custody was made in March, but in April a decision was made not to prosecute him. He should have been returned to federal custody. The sheriff's office argues the detainer was not sufficient proof the man was an illegal alien. However, in this case the detainer was sufficient because Juan had previously been deported and had only been sent to San Francisco custody so he could be prosecuted for another crime. This incident will likely be used to put an end to sanctuary cities if a republican is elected President. The nonsense about not wanting to honor federal detainers is a stupid policy by sanctuary cities. Nobody in ICE wants to arrest every illegal alien who comes to the attention of local police. What is wanted is cooperation with aliens who have been convicted of crimes (more than just an arrest). If the Kate Steinle case ever gets before the court, San Francisco will lose. As it is, they will probably pay a good deal of money to the Steinle family. You could not have a worse fact situation for a sanctuary city.
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