Is America being scammed by “Birthright Citizenship?”

Is America being scammed by “Birthright Citizenship?”

To assess whether the framers of the U.S. Constitution would view birthright citizenship for children of undocumented immigrants as a “scam,” especially in California, we need to consider the historical context, the intent behind the 14th Amendment, and the modern implications of immigration policy.

Bill Ponton: Imaginary birthright

On Tuesday, California AG, Rob Bonta, along with 18 other state attorneys general challenged in court an executive order signed by President Trump ending birthright citizenship. Bonta asserted that birthright citizenship, a situation in which a child born in this country to illegally present foreigners automatically becomes a U.S. citizen, is a “longstanding foundational right” and that Trump’s action sets “a terrifying tone” for the rest of his term. Should Trump’s order be allowed to stand, Bonta said, it would deny citizenship to more than 20,000 babies a year in California alone, cutting them off from access to federal benefits and programs. The order could also put at risk states’ access to federal funding from programs like Medicaid and the Children’s Health Insurance Program. “Birthright citizenship is foundational to our nation’s history, to California’s history, to our very identity,” Bonta said.

I find it ironic that Bonta cares so much about birthright citizenship to 20,000 babies a year but is not the least concerned with denying the right to birth to 179,660 babies a year in California. I would assert that the right to life is a “longstanding foundational right” that trumps (no pun intended) the claim of birthright citizenship. Moreover, no matter how painful the loss of state access to federal funding may seem to Bonta and others in the bloated California bureaucracy, it is hardly worth losing sleep over for the rest of us.

Bonta never addresses what value birthright citizenship might bestow upon an infant while his parents remain illegal aliens. The parents are not going to leave him behind if they are deported. The parents might see some advantage in using their infant as a pawn (“anchor baby”) in a contest with the U.S. government to remain in the country but that is it.

Richard Epstein, Civitas Institute @ UTexas.edu: The Case Against Birthright Citizenship

One of Trump’s most daring executive now declares that citizenship rights should be denied to children whose mother under current was “unlawfully present in the United States” or whose presence in the United States was “lawful but temporary,” but only if that person’s father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.” That general command was subject to two key qualifications. The first is that it did not take effect until 30 days after the order, which grandfathered out of the E.O. all individuals who became birthright citizens as the children of both illegal aliens and sojourners into the U.S. The E.O. rightly did nothing to undo the current status whereby the children of lawful permanent residents were entitled to obtain the documents needed to certify their citizenship.

As a matter of first principle, it is hard to think of any good reason why legal and illegal conduct should be treated identically. A person who kills without justification or excuse is a murderer, who is properly treated quite differently from someone who kills in self-defense. Indeed, the entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct. Therefore, to the uninitiated, it should come as a surprise that the dominant view in the United States, ably expressed by, now a Fifth Circuit Court judge is that the history and text of the Fourteenth Amendment require the constitutional protection of birthright citizenship, by arguments from text and history, without asking about the undesirable incentive structures created by these rules. Indeed, that position is so engrained in American legal culture that federal court Judge and Reagan appointee John Coughenour, in a short written in response to a filed by the states of Washington, Arizona, Illinois, and Oregon, held that there was a “strong likelihood” that the plaintiffs would win on the merits, citing, without analysis, as his key legal authority (1898).

It turns out that he should have looked closer because that decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens. Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute. The gist of Justice Horace Gray’s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country. There has been no serious discussion in the judicial and academic literature supporting citizenship for illegal aliens that addresses the obvious perverse incentives of encouraging illegal immigration by allowing the parents to have their new-born children profit from these parental wrongs. The same argument applies to children whose mothers come late in pregnancy (often, disparagingly, anchor babies, to the United States for the sole purpose of taking advantage of birthright citizens.

Historical Context and Intent:

14th Amendment’s Purpose: The framers of the 14th Amendment, ratified in 1868, primarily aimed to ensure that freed slaves and their descendants were recognized as citizens, countering the Dred Scott decision. The amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The phrase “subject to the jurisdiction thereof” was debated during its drafting. At the time, this was interpreted to exclude only Native American tribes (not subject to federal jurisdiction) and children of foreign diplomats (who are not under U.S. jurisdiction due to diplomatic immunity).
Original Intent: There’s a debate about whether the framers intended for this clause to apply universally to all children born on U.S. soil, including those of illegal immigrants. The framers could not have directly considered “illegal immigration” as we understand it today, since immigration law did not exist in the same form. However, some argue that the phrase “subject to the jurisdiction” was meant to imply a more comprehensive allegiance to the U.S., potentially excluding those whose parents were not legally within the country’s jurisdiction.

Several key figures from the U.S. Congress participated in the debate and drafting of the Citizenship Clause of the 14th Amendment, particularly regarding the phrase “subject to the jurisdiction thereof.” Here are some notable framers:

Senator Jacob Howard (Ohio) introduced the Citizenship Clause in the Senate. Howard clarified that the clause was meant to exclude only “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.“

Edward Erler, Heritage Foundation: Defining Citizens: Congress, Citizenship, and the Meaning of the Fourteenth Amendment

There is a widespread belief that the Citizenship Clause of the Fourteenth Amendment automatically confers citizenship to anybody simply born on U.S. soil, regardless of the legal status of his or her parents. In reality, birthright citizenship is incompatible not only with the text of the Citizenship Clause, but more fundamentally, with the principle of consent—one of the bedrocks of republican government. From a constitutional point of view, the inclusion of the clause “and subject to the jurisdiction thereof” indicates that mere birth is not sufficient to acquire citizenship.

The argument of the Declaration grounded citizenship in consent. The natural law argument of the Declaration was a repudiation of the notion of birthright citizenship that had been the basis of British citizenship (i.e., being a British “subject”) ever since it was first articulated in Calvin’s Case in 1608. Sir William Blackstone, in his Commentaries on the Laws of England, had argued that the idea of birthright citizenship was an inheritance from the “foedal system”—it derives from the “mutual trust or confidence subsisting between the lord and vassal.” “Natural allegiance,” says Blackstone, is “due from all men born within the king’s dominion immediately upon their birth.

In the Summary View of the Rights of British America (1774), Thomas Jefferson argued that it was a natural right possessed by all men to leave the country where “chance and not choice” had placed them. The notion of a natural right to expatriation has no place in the scheme of an indefeasible birthright citizenship.

During debate, commentators frequently described Blackstone’s view of birthright citizenship as an “indefensible feudal doctrine of indefeasible allegiance” that was incompatible with republican government.

Senator Lyman Trumbull (Illinois) – As Chairman of the Senate Judiciary Committee, Trumbull played a significant role in the debate. He explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else,” suggesting a complete subjection to U.S. jurisdiction.

Representative John Bingham (Ohio) – Known as the principal framer of the 14th Amendment’s first section, Bingham clarified the amendment’s intent, though his exact comments on the jurisdiction clause are less cited in this specific debate.

Senator Reverdy Johnson (Maryland) – He contributed to the debate by arguing that “subject to the jurisdiction thereof” meant the same as “not subject to some foreign power,” aligning with the interpretation of excluding diplomats and possibly those with foreign allegiances.

Senator Edgar Cowan (Pennsylvania) – Cowan expressed concerns during the debates that the language might extend citizenship too broadly, but he did not directly define “subject to the jurisdiction” in the way others did. Cowan indicated his apprehension about expanding citizenship too broadly, especially to groups he felt might not owe allegiance to the United States or whose presence might alter the political landscape in ways he viewed as undesirable. Cowan of Pennsylvania ultimately voted against the 14th Amendment. He expressed concerns during the debates that the Citizenship Clause might extend citizenship too broadly, particularly worrying about the implications for children of foreigners and the potential for dual allegiance. His opposition was documented in the congressional records of the time.

James F. Wilson of Iowa, Chairman of the House Judiciary Committee (39th Congress), confirmed on March 1, 1866, that children under this class of aliens would not be citizens:

We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.

These figures were pivotal in shaping the language and interpretation of the Citizenship Clause, especially in relation to the concept of jurisdiction. Their comments and interpretations during the congressional debates have been crucial for later legal and historical analysis of the amendment’s intent.

Modern Implications:

California’s Situation: With an estimated 20,000 babies born to undocumented parents in California annually, the state represents a significant example of how birthright citizenship functions today. Critics argue that this practice incentivizes illegal immigration, creating a “scam” where parents enter the country to secure citizenship for their children, thereby accessing benefits and potentially chain migration opportunities.
Economic and Social Impact: Opponents argue that this leads to increased public spending on services for these children (like education and health care) and could strain resources. They claim it’s a misuse of the amendment’s intent, turning citizenship into a strategic asset rather than a right based on allegiance or legal presence. See the argument below:

Opponents of birthright citizenship for children born to undocumented immigrants argue that this practice has several significant implications:

Increased Public Spending:

Education: Public schools in the U.S. are obligated by the Supreme Court decision in Plyler v. Doe (1982) to provide free education to all children within their jurisdiction, regardless of immigration status. This means that children of undocumented immigrants, who are granted citizenship at birth, require educational resources, including teachers, infrastructure, and special programs, which are funded by taxpayers. Critics contend that this can lead to overcrowded schools, especially in areas with high concentrations of undocumented immigrants, potentially diluting resources available per student.
Health Care: Health care services for these children, while not universally free, often involve public funding through programs like Medicaid or Children’s Health Insurance Program (CHIP) for low-income families. Critics argue that this increases the financial burden on healthcare systems, particularly in states with high birth rates among undocumented populations.
Other Public Services: Beyond education and health care, these children might also access other public services like welfare benefits, housing assistance, or legal aid, which are supported by public funds. The argument here is that the cumulative cost of these services, when spread across a large number of children, can significantly strain public budgets.

Misuse of the 14th Amendment’s Intent:

Strategic Use of Citizenship: Critics claim that the current interpretation of the 14th Amendment’s Citizenship Clause has turned citizenship into a “strategic asset.” They argue that some individuals might intentionally enter the country illegally to give birth to secure citizenship for their children, thereby gain access to the benefits and protections that come with U.S. citizenship. This, they say, was not the amendment’s original intent, which was to grant citizenship based on allegiance and legal presence.
Allegiance Question: The critics further argue that the phrase “subject to the jurisdiction thereof” should imply a comprehensive allegiance to the U.S., which might not be the case for children of undocumented immigrants who might maintain strong ties to their parents’ country of origin. They contend that the amendment was designed for individuals who would grow up with undivided loyalty to the United States, not as a tool for immigration strategy.
Legal Presence: There’s a contention that the amendment’s framers could not have foreseen the modern context of illegal immigration and therefore did not intend for their words to apply to children of those not legally present in the country. This interpretation suggests that the amendment should not be used to grant citizenship to those whose parents have bypassed immigration laws.

Resource Strain:

Local and State Resource Allocation: Areas with significant populations of undocumented immigrants might see their local resources stretched thin. Schools might become overcrowded, healthcare facilities might face increased demand, and social services could be overburdened, all of which can reduce the quality of service for residents regardless of immigration status.
Long-term Economic Impact: There’s also an argument about the long-term economic implications. If a large number of children born to undocumented parents grow up to face barriers to legal employment due to their parents’ status, this could lead to increased reliance on social services or contribute to informal labor markets, potentially affecting economic stability and tax revenue.

These criticisms frame birthright citizenship as an issue of resource management, legal interpretation, and national policy, suggesting that reforms might be necessary to align with the original intent of the 14th Amendment and to manage public resources more effectively. However, supporters of current birthright citizenship policies argue that these children contribute to the cultural and economic fabric of the U.S., and that denying them citizenship could lead to a disenfranchised underclass, contrary to American values of inclusivity and opportunity.

Legal and Political Arguments:

Jurisdictional Debate: Some legal interpretations suggest that the framers might not have intended for birthright citizenship to extend to children whose parents owe allegiance to another country and are illegally in the U.S. This view is supported by historical context where the U.S. was not dealing with the same scale of undocumented immigration.
Supreme Court Precedent: The 1898 Supreme Court case United States v. Wong Kim Ark set a precedent for a broad interpretation of birthright citizenship, but it did not specifically address children of undocumented immigrants, as the concept of illegal immigration was not as defined or prevalent then.

Have the various Supreme Court rulings “missed the boat” on the birthright citizenship issue?

Various Supreme Court rulings concerning birthright citizenship have been criticized by some for not aligning closely with the original intent of the 14th Amendment or for not addressing the modern complexities of immigration. Here’s how these criticisms might be framed:

United States v. Wong Kim Ark (1898):
Criticism: This case established that children born to legal permanent residents (Chinese nationals in this case) on U.S. soil were U.S. citizens, interpreting “subject to the jurisdiction” broadly. Critics argue this decision missed the boat by not distinguishing between legal immigrants and those who are in the country illegally, a distinction not as pertinent in the 19th century but very relevant today. They claim the Court did not consider the implications of this ruling for undocumented immigrants, essentially setting a precedent for a more liberal interpretation of citizenship that the framers might not have intended.
Plyler v. Doe (1982):
Criticism: While not directly about citizenship, this ruling mandated that states provide public education to undocumented children, which indirectly supports the argument for birthright citizenship by ensuring these children are treated as part of the community. Critics argue that this ruling further blurred the lines of jurisdiction and allegiance by extending benefits to children of undocumented immigrants without addressing their citizenship status, thus indirectly affirming the practice of birthright citizenship without confronting the core legal issues.
Missed Opportunities for Clarification:
Lack of Modern Contextualization: Critics contend that the Supreme Court has not revisited birthright citizenship in light of contemporary immigration challenges, particularly the scale of illegal immigration. They argue that cases like Wong Kim Ark were decided in a different era of immigration policy and national security concerns, which might not apply to today’s context where illegal immigration is a significant political and economic issue.
Not Addressing “Subject to the Jurisdiction” Fully:
Jurisdictional Debate: The interpretation of “subject to the jurisdiction thereof” from the 14th Amendment has been criticized for being too simplistic. Critics argue that the Court has not adequately explored what “full jurisdiction” means in modern times, especially concerning undocumented immigrants who might still have legal ties or allegiances to their home countries. This is seen as missing an opportunity to clarify or limit the scope of birthright citizenship based on a more nuanced understanding of jurisdiction.
Ignoring Congressional Intent:
Original Intent: Some critics believe the Court has focused more on legal precedent and less on the historical context and the specific debates around the 14th Amendment’s drafting. They argue that the Supreme Court should have re-evaluated whether the framers intended for “subject to the jurisdiction” to include children born to those who entered the country illegally, especially given statements from framers like Senator Reverdy Johnson.

Policy Implications:

Incentivizing Illegal Immigration: There’s a contention that by not re-examining birthright citizenship in light of current immigration patterns, the Supreme Court has indirectly supported policies that might encourage illegal immigration. Critics argue that this has significant policy implications, including public spending and national security, which have not been adequately addressed by judicial review.

In summary, critics argue that the Supreme Court has “missed the boat” by not revisiting or reinterpreting the Citizenship Clause in a way that reflects changes in the legal, social, and economic landscape since these rulings were made. They believe the Court should have provided clearer guidance or limitations on birthright citizenship to align more closely with both the original intent of the 14th Amendment and current national interests. However, these criticisms are highly debated, with many legal scholars and justices defending these precedents based on the principles of equal protection and the historical context of the laws at the time they were interpreted. On the other side, proponents of the current interpretation assert that the inclusive nature of birthright citizenship is fundamental to American values of equality and opportunity, suggesting that any change could lead to a patchwork of citizenship rights that would undermine the unity and stability of the nation. This ongoing debate encapsulates the broader tension between constitutional fidelity and the need for legal adaptation to contemporary societal changes.

Conclusion:

If the framers were alive today, they might indeed see the current application of birthright citizenship as deviating from their original intent, especially in contexts like California, where the scale of undocumented births is significant. They might argue that the amendment was meant to secure citizenship based on a clear jurisdiction and allegiance, not as a means to bypass immigration laws. However, implementing citizenship at 18 would require a nuanced policy that ensures these children are not denied basic rights and protections during their formative years, balancing legal immigration control with humanitarian considerations.

Jeffrey Bennett: Ending Birthright Citizenship Does Not Require A Constitutional Amendment

It is undisputed that the 14th Amendment’s Citizenship Clause requires that one is both born in the United States and subject to the jurisdiction of the United States. Further, no fair reading of the legislative history of the drafting of that Clause leads to any conclusion other than it required those granted citizenship have complete allegiance to the United States.

Logic dictates that illegal immigrants in defiance of the jurisdiction of the United States and citizens of foreign powers are not subject to the jurisdiction of the United States as required by the 14th Amendment. And the Supreme Court has never held the opposite to be true. Congress, therefore, with its plenary power over immigration and empowerment to enforce the Citizenship Clause can restore the correct birthright citizenship policy through legislation. And indeed, if we are to have a rational immigration policy controlled by government as opposed to one controlled by every person who illegally enters, Congress must return to the original meaning of the 14th Amendment.

The kid of a Mexican diplomat who is in this country *legally* doesn’t enjoy birthright citizenship. Well, neither does the kid of an *illegal* alien either. Here’s what the 14th amendment says:

“All persons born or naturalized in the United States, AND SUBJECT TO THE… https://t.co/hxl6fOgrrS

— Vivek Ramaswamy (@VivekGRamaswamy) December 14, 2023