Birthright Citizenship – Why We Don’t Need it in the 21st Century

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I disagree that, the res jolie provision of the 14th Amendment to the US Constitution, birthright citizenship, is “a cornerstone of our freedom”. I oppose birthright citizenship and the abuses it brings to America’s immigration system.

The 14th Amendment, which provided for a res jolie system of citizenship, was spawned as a response to the abhorrent 1857 decision of the 1857 US Supreme Court in the Dred Scott case, which held that US born children of African slaves were not US citizens, even though born on US soil. That issue need to be defined by a Constitutional Amendment and the only way to do it was to create a res jolie, rather than a res sangre citizenship law by amending the Constitution. Congress immediately acted by ratifying the 14th Amendment in 1858, which at Section 1 states:

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note that in addition to defining who is a US citizen, Section 1 of the 14th amendment’s main thrust is actually equal protection, the kind the Supreme Court denied in the Dred Scott case. Section 1 goes on to say:,

“. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Of course, that language grants those rights to all who are present in America, and rightfully so. That’s what “equal protection” is all about, even though until very recently the US government has denied rights to certain classifications of individual, i.e. blacks, browns, yellows, greens, homosexuals, etc. It is clear that, in addition to defining who is a US citizen, Section 1 mandates that no State can enact any law that affects the privileges and immunities granted by the entire of the Constitution.

The need for res jolie that existed in 1857 has long ago disappeared. There is no group of people legally within the United States today that needs the protection of res jolie, as did the children of America’s enslaved people, whose parents never asked to come to America’s shores, and although born in America were denied citizenship on the basis of their enslavement. This, in effect, made them stateless persons, as well as slaves. And that was as abhorrent then as it is now.

No illegal alien present in the United States is enslaved. They came here in violation of immigration laws and they knew they were violating those laws. Children of illegal aliens present in the USA have a res sangre entitlement to citizenship in the country of their parent’s nationality; they are not stateless and they are not enslaved. This is not Dred Scott all over again. Therefore, except for the language of Section 1 of the 14th Amendment, the children of foreigners, legally present in the USA or not, should have no claim to birthright res jolie citizenship, since the issues of Dred Scott, and the rational of the res jolie provision of the 14th Amendment does not apply to their situation. There is no injustice in changing the 14th Amendment to provide for res sangre.

Moving into the 21st century, America would be better off with a res sangre system. Why?: The rampant abuse of the res jolie system by people from around the world, but especially people from Mexico and Asian countries. And for those who see racism as the basis for everything, I only say that it is not racist to want to protect American interests and American interests include controlling, but not prohibiting, immigration through well crafted immigration laws that benefit America and its citizens. But America does not presently have such well crafted immigration laws and the purported proposed and often failed “Comprehensive Immigration Reform”, a buzzword for Amnesty, does not even come close to making it one. That tired old horse, which has been defeated many times in both the Houses and the Senate, does not adequately address, or respond to, the issues that currently plague America’s antiquated and burdensome immigration laws that affect the immigration of worthy and qualifying people such as spouses of US citizens and permanent residents, which need to wait a year or more to immigrate from overseas, while their US citizen spouse languishes in loneliness and solitude.

There is a time and place for everything and although the concept of res jolie served its purpose in 1858, today it serves no purpose to America, but only serves a purpose to those who wish to exploit it. In 2015, America has different problems, not the least of which is terrorism, and those who would come to America to do her harm. Res jolie would serve their interests well.

While America should always welcome the talents of foreigners who can positively contribute to the good of society, it cannot proceed in the future with its head in the sand, using as their motto, the quotation of the infamous words of Emma Lazarus, “Give me your tired, your poor, Your huddled masses yearning to breathe free . . .” Those days are history. Today, with the amount of illegal immigration, especially along the Southern border (estimated at 12 million illegals), America is being forced to admit, as Emma’s poem goes on to say, “The wretched refuse of your teeming shore.” This will not serve America well in the future, and it has nothing to do with race. It is barnyard economics. If anyone disbelieves that, wait another five years when, denied access to Investor Visas and E Visas, thousands of middle class and wealthy Chinese and Arabs come to the USA to have their anchor babies, as the air quality in China deteriorates to the point of non-livability and cruel despotism of government leaders, civil wars and religious wrangling annihilate the scant freedoms presently held by Middle Easterners.

So, what’s America’s solution to being overrun with “anchor babies”? Simply change America’s res jolie system of citizenship allotment to a res sangre system, as many other countries, like France, have. It is a simple modification of Section 1 of the 14th Amendment that would offend no rights of Americans, and which I have advocated for the past 25 years. The revision could be passed, adding just a few more words to Section 1 so it read as follows:

Section 1. All persons born of at least one US citizen or lawful permanent resident of the United States, 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.”

What’s wrong with that? Who does it discriminate against? . . . Illegal aliens, Immigration law abusers? Maybe. So what? Where in the US Constitution does it advocate admitting the entire world into America just because they can swim a river or hop a fence, or come on a visa and over stay? Where in the US Constitution, or any other law of the land, does it provide for throwing open the doors of America to the world, with unlimited restriction? America does its share of good (and bad) in the world and admits many qualified refugees to residency in the USA, and bends over backwards, sometimes too far, to be humane and civil to people whose own countries are not.

On the subject of Anchor babies: I wonder, how many anchor babies would need to be born in the USA before it became a “large number”? A hundred, a thousand? Ten thousand? There are an estimated 12 million illegal aliens presently in the USA. If 6 million of them had just one baby, that would be 6 million anchor babies. Notwithstanding Mark Noferi, Esq.’s assertion that, “There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth,” it is quite to the contrary, and as the world evolves economically and politically into the apparent chaos we are currently experiencing, anyone who is heavily involved in the trenches of US immigration knows that both Mexicans and Chinese, among others, have been relying on anchor babies for decades in order to secure both long and short-term US immigration plans.

For those who don’t know, here’s how the Mexicans do it: While pregnant, 20-year old Mexican woman crosses the border illegally (there are many ways to do that), goes into labor, walks into the nearest emergency room in any US hospital, where by law they cannot be turned away, gives birth at the hospital’s expense, takes the baby out of the hospital (leaving the medical bills unpaid) and either continues residing in the USA illegally, or takes the baby back to Mexico and waits 21 years to acquire derivative US immigration benefits from the child. If the mother stays in the US, she files SSI for the kid – welfare. Then she has a 2nd US citizen kid, then a 3rd, then a 4th, then a 5th. With five kids on SSI, one can live quite nicely in the barrio, where medical care is dispensed free of charge at the local free medical clinic and food stamps issued to the children lighten the burden of the monthly food bill. Of course, there have been changes in immigration laws, regulations and policies within the last 25 years beginning with the Immigration Reform and Control Act of 1986 and its prodigy, making it increasingly more difficult, if not impossible, for illegal parents to gain immigration benefits from their US citizen child after he/she turns 21. No matter, the kid is legal, goes to college, then law school, becomes an immigration lawyer and afterwards supports his illegal parents in high style in a waterfront home with a yacht out front, paid for with the millions of dollars he/she makes helping illegal aliens gain lawful status in the USA. Isn’t that how it works?

As for the Chinese, Vietnamese, Filipinos, Taiwanese, Russians, Europeans, South Americans, etc. who wish to insure mobility in their old age and get a hedge on their children’s’ future that is free of the uncertainties of despotic and ever-changing political and economic conditions at home, the wealthier ones simply come to the USA on a Visitor Visa while six months pregnant, obtain a 6-month legal entry, tour around a little (the Grand Canyon tour is great this time of year and the tour bus driver speaks Chinese) and when the due-date comes (providing it is not born at the back of the tour bus), the baby is born at a US hospital. As soon as the kid is old enough to travel, mom and baby pack back home and live a normal comfortable life with Papa, who runs a successful company, enjoying the benefits and comforts of their own language and culture, while accumulating wealth. When it comes time for the kid to go to college, the wise parents pack the US citizen kid off to America, to a university of their affordability and acceptance based on the kid’s academic record. Any time after reaching age 21, the kid petitions the parents so the parents, when they are ready, can retire in the USA. Then, five years after receiving permanent residence, the retired parents apply for US citizenship, immediately plead poverty and apply for Medicare and SSI. Neat trick, while all the time living in a $1 million dollar house owned by the kid who now has graduated from law school and is working an immigration lawyer. In the meanwhile, the parents, having gifted their kid most of their entire life savings to buy the house, they hide the remainder of their overseas assets from the US government, which they conveniently dip into as required, or when they return “home” on their annual vacation.

In 2010, in opposition to Arizona’s SB1070, Michele Waslin, Ph.D. asserted that, it was necessary to include the citizenship clause in the Fourteenth Amendment (ratified in 1858, because the Supreme Court’s Dred Scott decision of 1857 had denied citizenship to the children of slaves. Ms. Waslin stated, “It was necessary to include the citizenship clause in the Fourteenth Amendment because the Supreme Court’s Dred Scott decision of 1857 had denied citizenship to the children of slaves.”

In spirit, the Supreme Court incorrectly decided the Dred Scott case, but at the time there was nothing in the constitution, law or precedent that directly supported Mr. Scott’s argument and it took a Constitutional Amendment the following year to negate the Court’s horrific ruling. Thank goodness.

“We hold these truths to be self evident that all men are created equal.” Heed well this portion of the prologue to the Declaration of Independence, drafted by angry men who claimed King George was taking away their freedom, and all the other rhetoric those slave-owning freedom-denying, self-serving, greedy founding fathers and their prodigy built into the very core and foundation of America’s hallowed new experiment in democracy, which took two hundred years to fulfill, if it be fulfilled, but which rather precursed the precept of Soviet Communism, many believed, and to this day believe that some are created “more equal” than others. (Ref. George Orwell’s book Animal Farm.)

But does, and should, equality extend to foreigners and their prodigy born in America with the intent to confer US citizenship as a birthright? As far as equal protection goes, absolutely, but the conferring of citizenship is not part of equal protection (except under the current language of Section 1) when the intent of the one seeking to be protected (or in this case the parent) is to violate either the spirit, the intent, or the letter of US immigration law. Is res jolie a “loop hole” in US immigration law that is supported by the Constitution? Well, yes, as presently drafted.

Marshall Fitz, Esq. defended America’s res jolie policy as a “core part of our American heritage”:

“Why do these Republican members want to revive the long moribund policies that their party’s most revered president (Lincoln) fought so hard to eradicate? Why do they want to create once again a legally sanctioned vulnerable and exploited underclass in this country? In order to advance an extreme anti-immigrant agenda under the dubious theory that changing the 14th Amendment’s citizenship rules will deter unauthorized immigration.”

Mr. Friz goes on to claim:

“And making such a system work would require a new and cumbersome bureaucracy, bringing the Department of Homeland Security into every delivery room across the country. We would need a new federalized birth registry in order to ensure that citizenship status is allocated properly, something that is currently in the hands of states and localities. To put things in perspective: Roughly 4 million children are born in the U.S. every year, each of whom would encounter vast bureaucratic red tape. Instead of reducing unauthorized immigration, such a change could actually increase the numbers of people stuck in limbo, without legal status or nationality, as parents struggle to register their children for citizenship.”

The answer is “yes”, Mr. Fritz, and I will explain below just how easy it would be to accomplish that.

Although I abhor bureaucracy (a system under which I have toiled as an immigration lawyer for more than 30 years), I would welcome a res sangre citizenship policy and a national system of birth registration. We already have a Social Security Number (complete with a flimsy paper card that can be duplicated on a child’s Cub Print Shop, not to mention by modern Cad Cam drawing programs. And that, believe it or not, is your National Identity Number, although many fail to recognize this.

“Complex laws to prove their citizenship,” as Ms. Waslin suggests? “Struggle to register their children for citizenship”, as Mr. Frits suggests? Not necessarily. It is really quite simple, unless the government mucks it up.

Here’s how: Upon registering at the birthing hospital, or if not in a hospital a treating midwife or physician (hereafter collectively referred to as “the hospital”) would register the child’s birth as follows:

(1) One US citizen or permanent resident alien parent would show
proof of birth in the US, a Naturalization Certificate, or proof of
lawful permanent residence (Green Card) to the hospital, in a similar
manner as employment verification is presently given on I-9 forms;

(2) The hospital would verify the child’s birth to the government on a prescribed
form, (call it an I-10) along with the following:

a. copy of the child’s foot prints;

b. copy of a DNA report produced from the child’s blood;[1]

c. copies of proof of at least a parent’s legal US status, and

d. a statement under penalty of perjury that they reviewed the
parental documentation with the appropriate affidavit, similar
to that found on the present I-9.

(3) The hospital would submit the package to the appropriate agency
of the US government, along with a modest filing fee;

(4) The child’s birth recordation form and supporting documents, along
with the recorded results of the DNA test, but not the actual DNA sample
itself[2], would be recorded in a National Data Base and the US government
would issue a certified Birth Certificate in the form of a machine-readable
card, complete with holograms and other security devices that are found on
modern driver’s licenses.

Designed this way, the birth registration process would be standard throughout the USA, rather than the piecemeal, hodgepodge system we have today, where each county in each state has their own way of doing things, with no standardized form for a birth certificate and no way of verifying the identity of the holder of the birth certificate. I understand this is extremely controversial. But the future is now and the government has already encroached on the privacy of Americans, and the world, so grin and bear it.

In effect, America would create a simple and effective system of determining the identity of its population and who is and who is not authorized to work in the USA, making the dubious and mostly ineffective e-Verify program unnecessary. Yes, all naysayers out there, a “National Identity Card”. Oh, no, some will say; I don’t want that! Wake up. You already have a national identity card. Although not much of a card, as cards go today, it is called a Social Security Card. The problem with that is, it is obtained by showing a birth certificate, a document with which a person’s true identity cannot actually be verified to the Social Security Administration. Now that’s lame. That’s also not “homeland security” and all the fences around the perimeter of the USA are worthless unless there is a decent system of identifying those present in the country. A National Identity Card is a small price to pay in a system that currently already has us by the short hairs, so what’s the big deal about putting a hologram on it at time of birth?

In reality, there is no credible evidence or argument to support the position that res jolie birthright citizenship is preferable to res sangre, or that res sangre is in any way invidiously discriminatory or contrary to the precepts of lawful immigration into the USA. Alternatively, there is no reliable evidence or argument that supports the position that a system of res sangre would deter illegal immigration..

As an argument in favor of amending Section 1 of the 14th Amendment to a res sangre based system, we know what res jolie has gotten us . . . exactly what we have: anchor babies and SSI recipients, the carrot on the end of the string acts as a stepping stone to America, one way or another, and a violation of both the spirit and intent of US immigration laws. As to whether or not a quasi res sangre system would deter unauthorized immigration, who cares? What it does is, it plugs a loop hole in the law; and as we all know, Joe Lunch-Bucket abhors loop holes that allow some people to avoid doing that what he is forced to do. Go head on Joe, who pays his taxes while the super rich pay none, due to loop holes in America’s 50,000+ pages of tax legislation that will never be reformed.

So the bottom line is: Change the language of the 14th Amendment to invoke a form of res sangre requirement to becoming a US citizen. It is not going to affect anyone but those who seek to circumvent US immigration laws by having their babies, as singer Bruce Springsteen immortalized in song, “Born in the USA!”

[1] The Virginia Hospital & Healthcare Association reports athttp://www.vhha.com/childidprogram.html as follows:
Child ID Program
Suggested Implementation Steps for Hospitals
Starting July 1, 2012, Virginia law requires hospitals with obstetric services to offer to provide
to the parent of each infant born at the hospital a blood sample collected from the infant.
§
32.1-134.02. Infants; blood sample provided to parents.
Every hospital providing maternity care shall offer to obtain a sample of blood from
an infant born at the hospital and provide that sample to the mother of the infant.
The hospital gives this blood sample to the mother after it is collected for future use if
needed to obtain a DNA analysis to help identify a child in the event of an emergency
such us an accident, natural or manmade disaster, or abduction. The parent is responsible
for storage of the sample. Once the hospital collects the sample and provides it to the parent,
only the parent will have access to the sample; the hospital has no further responsibility for
the sample, its storage, analysis.

[2] The parent would pay for the DNA test at a rate prescribed by the US government, as a part of the hospital costs for delivery of the child. Once the hospital collects the sample it will send the sample to a US government certified DNA testing laboratory for analysis and the preparation of a DNA Report. The hospital has no further responsibility for the sample, its storage or analysis. The DNA laboratory will analyze the sample, prepare a DNA Report and return the sample directly to the parent, and will send the DNA Report to the hospital. Once the DNA report is completed and the sample sent to the parent, the DNA laboratory will have no further responsibility for the sample;

Reprinted with permission.


About The Author

David D. Murray, Esq. is a retired practitioner and consultant in connection with business law and US immigration matters, practicing law from 1978 to 2014, representing corporations and individuals from around the world in a variety of practice areas such as domestic and international business transactions, family and employment-based immigration, consular matters, naturalization, business litigation, copyright, trademark, and trade secrets litigation, employment law and contracts. Mr. Murray received an AV rating from Martindale-Hubbell for excellence and ethics.


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