The Fourteenth Amendment, ratified on July 9, 1868, says, among other things, “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.” Some people don’t like this and think it should be changed. I like this and don’t think it should be changed.
First, let’s consider some of the reasons people want it to be changed. Number 1, Terror Babies. Some things are too stupid to seriously consider, especially without evidence. The theory is that terrorists are coming here to have babies and then bringing them home to raise as terrorists and then when they are old enough to terrorize they will not have difficulty getting into the United States. Impressive long-term planning. I don’t even know what I am going to have for breakfast this morning. At least we know that those terrorizing us don’t expect to win for at least 20 years.
Number 2, Anchor Babies. This theory is that women come to the United States to have a baby and that baby will provide citizenship to the parents. A good theory except it is not so. To immigrate a parent, a child must be at least 21 years old. 8 USC § 1151(b)(2). Further, to become a permanent resident while residing in the United States, the mother and father would have had to have entered with inspection through a border. 8 USC § 1255(a). Otherwise, the parents have to leave to get a visa. And if the if the mother and stayed in the United States for more than a year and then left to get the visa, they cannot come back for ten years. 8 USC § 1182(a)(9)(B)(i)(II). So, again we have an example of long term planning. If women are sneaking in for immigration purposes, they are mistaken about the benefit. I suspect they are actually sneaking in for health care. They probably prefer giving birth in a hospital with a doctor than with their mother-in-law in a shack. Women are fickle that way. Changing the law will not change that.
Now, let’s consider some reasons why it is a bad idea. Like sorbet between courses at a fine restaurant, I believe birthright citizenship is a good palate cleanser. If a person sneaks into the United States and starts a family, with birthright citizenship we are assured that their “contaminating illegality” will last just one generation. After 70 or 80 years, the person will be dead and the illegal immigration problem is over vis a vis that person. Without birthright citizenship, the problem can continue for generations. In some places in the world it does. The Rohinja in Burma have lived in Burma for many centuries and are still not considered citizens. There are Koreans in Japan who are not citizens after many generations of residence in Japan. These are the kind of anomalies we may expect.
Second, by defining more people to be “illegal,” there are more people to hunt down and deport. Who wants to have the job of scouring hospitals, finding the illegal, and deporting them? Do you want to write the policies about what to do with babies whose parents disappear when immigration officials arrive? What about babies in incubators? Unplug ‘em and ship ‘em? If the children are not citizens here, where are they citizens of? Who will determine this? What benefit is a country full of stateless people who cannot be deported anywhere? Do we want to lock them up forever? Send them to District 9’s?
Third, related to the statelessness issue, if we eliminate birthright citizenship, we will have to change our laws about citizenship through derivation – citizenship obtained through relatives. Countries without birthright citizenship have far less complicated laws of derivation than the United States. Let’s look at just one of the derivation laws, 8 USC §1409:
(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401, and of paragraph (2) of section 1408, shall apply as of the date of birth to a person born out of wedlock if –
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years-
(A) the person is legitimated under the law of the person’s residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.
(b) Except as otherwise provided in section 405, the provisions of section 1401(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
There are references to Section 1401. This section states:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899.
I’ll spare you the references to Section 1408.
On top of this, there are separate rules for people born before December 1952, and derivation rules have changed in 1986 and 2001. To figure out if a person born outside of the United States is a citizen is extremely complex and an evidentially nightmare. The usual way a person shows his citizenship is a passport. The State Department quite often denies derivative citizens passports because the citizen cannot prove his parent’s residence or that he was legitimated or a host of other evidentiary reasons. If the parent does not cooperate, say because he died, the child may never be able to gather proof. If the State Department turns you down, the other place to get proof is through a Certificate of Citizenship from U.S. Citizenship and Immigration Services. Getting a Certificate of Citizenship from U.S. Citizenship and Immigration Services takes at least six months, requires an interview, and costs $460 (for now, but going up). Imagine if every person born in the United States had to go through a process of applying for a Certificate of Citizenship and pay $460. If there was no fee, imagine the cost to taxpayers. Based on the complexity, the process of obtaining proof of citizenship could also involve hiring a lawyer – like making a will or buying a house. If USCIS refuses to issue a document, then the person is stateless. Sending him back where he was born won’t work and sending him to his parents’ country only would work if that country’s derivation rules allow it and that country was willing to provide proof of citizenship and a travel document.
The reality is that countries without birthright citizenship by necessity have to have more simple derivation rules. Often, just having a parent or grandparent of that nationality is enough – even if the parent or grandparent naturalized after the child was born. I once flew from Buenos Aires to Houston and was quite amazed that at least half of the passengers I took to be Argentinians or Brazilians turned out were flying with Italian passports. Most seemed as Italian as Buddy Hackett. Unless we want a costly, bureaucratic nightmare and millions of stateless residents, we will have to simplify our derivations rules. Once we do, the Amerasian children of servicemen and the offspring of men on sex vacations will be able to find their way here. People with the most remote ties to the United States – their grandfathers impregnated a girl in war torn Paris – could get U.S. passports. Not that this is necessarily a bad thing. However, if the fear of those opposed to birthright citizenship is the lack of assurance that U.S. citizens will share a common language and culture, getting rid of birthright citizenship will likely make things worse, not better. Those who worry about maintaining an American culture will wish they could go back to worrying about Terror Babies. Posted August 15, 2010.
You are correct that “subject to the jurisdiction thereof” has meaning. The children of diplomats born in the United States are not citizens. See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). See, also, 8 C.F.R.§ 101.3, which states:
Creation of record of lawful permanent resident status for person born under diplomatic status in the United States.
(a) Person born to foreign diplomat. (1) Status of person. A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the Fourteenth Amendment to the Constitution. Such a person may be considered a lawful permanent resident at birth.
(2) Definition of foreign diplomatic officer. Foreign diplomatic officer means a person listed in the State Department Diplomatic List, also known as the Blue List. It includes ambassadors, ministers, charge1s d’affaires, counselors, secretaries and attache1s of embassies and legations as well as members of the Delegation of the Commission of the European Communities. The term also includes individuals with comparable diplomatic status and immunities who are accredited to the United Nations or to the Organization of American States, and other individuals who are also accorded comparable diplomatic status.
(b) Child born subject to the jurisdiction of the United States. A child born in the United States is born subject to the jurisdiction of the United States and is a United States citizen if the parent is not a “foreign diplomatic officer” as defined in paragraph (a)(2) of this section. This includes, for example, a child born in the United States to one of the following foreign government officials or employees:
(1) Employees of foreign diplomatic missions whose names appear in the State Department list entitled “Employees of Diplomatic Missions Not Printed in the Diplomatic List,” also known as the White List; employees of foreign diplomatic missions accredited to the United Nations or the Organization of American States; or foreign diplomats accredited to other foreign states. The majority of these individuals enjoy certain diplomatic immunities, but they are not “foreign diplomatic officers” as defined in paragraph (a)(2) of this section. The immunities, if any, of their family members are derived from the status of the employees or diplomats.
(2) Foreign government employees with limited or no diplomatic immunity such as consular officials named on the State Department list entitled “Foreign Consular Officers in the United States” and their staffs.
As for the “terror baby” argument not being a legitimate one, all I can say is “Amen to that.” I am glad you join to kill it for as you know, repeating a lie enough and it will be believed. Plenty of examples of that.
So what does “jurisdiction thereof” mean? Did the writers of the Fourteenth Amendment believe in some metaphysical property of the border? Section 1401 B is irrelevant, if the offspring of a foreign sovereign is automatically a citizen why not an internal sovereign? If a foreign ambassador gives birth in the US does that child have a claim of citizenship?
This was the first I heard of “Terror Babies”. Googling the term the first page of returns was from Huffington Post, CNN, and Harry Shearer responding to the most irrelevant of federal and local politicians. The top paragraph borders upon a straw man argument.