We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.
What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately, with the news that several states, including Pennsylvania, Arizona, Oklahoma, Georgia and South Carolina, may launch efforts to deny automatic citizenship to such children.
Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.
The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.
Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.