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Opinion
Jul. 27, 2008
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VIN SUPRYNOWICZ: Born in the USA -- and automatically a citizen?

VIN SUPRYNOWICZ
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In the July issue of Imprimis, an outreach publication of Michigan's free-market-oriented Hillsdale College, Edward J. Erler, professor of political science at California State San Bernardino, challenges the prevailing wisdom that the 14th Amendment bestows "birthright citizenship" on the newborn child of any illegal alien who can manage to avoid deportation long enough to give birth -- usually in a taxpayer-funded hospital.

The 14th, adopted in 1868, was intended to make formal what the Civil War had accomplished de facto -- the recognition that the former slaves were now citizens of the United States, with the full rights thereof. Thus (alongside some pretty odd stuff, including a provision that the "validity of the public debt of the United States ... shall not be questioned") the 14th instructs us that, "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."

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    • Long considered uncontroversial, the 14th is now believed to have created that obstacle to deportation of illegal immigrant women and their families known as the "anchor baby."

    The young mother may not be a citizen or even a legal resident, but the newborn is considered to be both: The newborn thus cannot be expelled, and our sense of common decency makes it difficult to envision expelling the mother but not the child.

    But what's that clause about "subject to the jurisdiction" doing in there, professor Erler asks in his new paper, adapted from a speech delivered in Phoenix back on Feb. 12.

    "We have somehow come today to believe that anyone born within the geographical limits of the U.S. is automatically subject to the jurisdiction," notes professor Erler. "But this renders the jurisdiction clause utterly superfluous and without force. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would simply have said that all persons born or naturalized in the United States are thereby citizens.

    "Indeed, during debate over the amendment, Senator Jacob Howard of Ohio, the author of the citizenship clause, attempted to assure skeptical colleagues that the new language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation's geographical limits; but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes."

    It was a matter of allegiance, Sen. Howard insisted. The citizenship clause excludes not only Indians but also "persons born in the United States who are foreigners, aliens (or) who belong to the families of ambassadors or foreign ministers."

    Did he say "aliens"?

    Thus, professor Erler demonstrates, " 'subject to the jurisdiction' does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S. ...

    "It is absurd, then, to believe the 14th Amendment confers the boon of American citizenship on the children of illegal aliens," professor Erler continues.

    "Nor does the denial of birthright citizenship visit the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. are not being denied anything to which they have a right. Their allegiance should follow that of their parents during their minority. Furthermore, it is difficult to fathom how those who defy American law can derive benefits for their children by their defiance -- or that any sovereign nation would allow such a thing."

    Nor has any Supreme Court decision ever squarely addressed this issue, the professor asserts.

    U.S. v. Wong Kim Ark, 1898, is often cited. But Wong Kim Ark is not on point because it dealt with the citizenship of a child born to legal resident aliens, an entirely different matter from a mother who gives birth after having snuck into the country without permission, reduplicating her refusal to subject herself to the laws and jurisdiction of this country every day, as she misrepresents and perjures herself by presenting fake documents in order to work, drive, sign up for utility services, and so on.

    "The constitutional grounds for the majority opinion in Wong Kim Ark are tendentious and it could be easily overturned" by adopting the arguments contained in the powerful dissent by Chief Justice Fuller, professor Erler asserts. But in any case, "Repeal of the current policy of birthright citizenship for the children of illegal aliens would not require a constitutional amendment."

    His evidence? The Congress in 1923 made a universal offer to American Indians that they could become U.S. citizens if they wished. This was done by simple legislation, without any constitutional amendment, professor Erler points out. The Congress "could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923."

    Because no supernational government ever has or is ever likely to protect constitutional democracy, "The doctrine of birthright citizenship and the acceptance of dual citizenship are signs that we in the U.S. are on the verge of reinstituting feudalism and replacing citizenship with the master-servant relationship," professor Erler warns. "Unless we recover an understanding of the foundations of citizenship, we will find ourselves in a world where there are subjects but no citizens."

    Imagine. Why, in such a world, local cops would give illegal aliens a "Get out of jail free" card rather than hauling them in after a crash, but would take the side of invading federal agents with no demonstrated local jurisdiction in any dispute with a local citizen.

    In such a world, we'd be told endlessly elastic federal "species protection" laws overrule our local property rights, including adjudicated state mining and grazing rights. We could be branded "trespassers" on our own lands!

    In such a world, judges would draw their salaries from the same place as cops and prosecutors, and -- instead of granting us a presumption of innocence -- would refuse to even see you on your scheduled court date, siding with cops who lurk in ambush or even robot "red light" cameras, finding citizens guilty of traffic and other "minor" infractions (on nothing more than a government agent's or even a robot's word) 99 percent of the time, fattening their courthouse coffers and helping pay their own salaries with the resulting river of revenue.

    All pretty far-fetched, eh?

    Vin Suprynowicz (vsuprynowicz@reviewjournal.com) is the Review-Journal's assistant editorial page editor. He is the author of "The Black Arrow."



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    JP wrote on July 29, 2008 12:18 PM: DavidThePatriot (or isit DavidTheIdiot?).....duh, no one had a problem with the 14th ammendment because it wasn't so aggresively abused by your so called "Hispanics" (read: Mexicans), they are the ones who have turned the 14th into a way of life.

    I suppose you not only mind having one or two INVITED guests into your home
    but also I assume you open your home and keep it open to dozens of people passing through your home, trespassing, squatting and taking up residence in your home, now don't you?

    It's all about the chronically corrupt Mexico and it's inability to reform itself into a modern country. Instead, Mexico pushes tens of millions of it's peasants into the USA, against the will of 3/4 of the American people. The other 1/4th, like DavidTheIdiot, are either too dumb or too young or too naive or intentionally intend to destroy the USA from within.


    Gal wrote on July 28, 2008 07:01 PM: These thieves are convinced that they are actually doing something heroic, because that is how their government of Mexico has brought them up. . .to believe whatever is good for their homeland is their right.

    They have no sense of conscience or responsibility without criminal activity.

    It's up to America's own to teach them not to bully the U.S.A. into compliance with their demands and movement against us and our nation.


    Paolo wrote on July 28, 2008 06:56 PM: Tom in Summerlin:

    Re-read the 2nd Amendment, with "well-regulated" in its original, 18th-century meaning. "Well-regulated," means the same as "well-prepared, well-outfitted, ready to perform." Only in this sense does the amendment make any sense. There are plenty of references in the writings of the Founders that clearly support this.

    Clearly, "well-regulated," in the context of the 2nd Amendment, cannot mean, "subject to lots of restrictions." To try to read the amendment this way results in sheer gibberish. That is: "Because a militia subject to lots of restrictions is necessary to a free state, the right of the people to keep and bear arms shall not be restricted ["infringed"].

    Now read the Amendment in its clear, original meaning: "Because a well-prepared, well-outfitted militia is necessary to a free state, the right of the people to keep and bear arms shall not be restricted."

    Vin has addressed this common misunderstanding many times.


    Tom in Summerlin wrote on July 28, 2008 04:17 PM: Plenty of selective thinking goes on in the libertarian/conservative head. We will read into the 14th Amendment only what we want, and ignore the rest, which that does not apply to the 2nd Amendment. The phase, "a well regulated militia" is completely ignored when convenient to the objective of unfettered gun ownership, (bazooka anyone?) Now the 14th is read the opposite, yeah it says that but it doesn't really mean what it says.


    DavidThePatriot wrote on July 28, 2008 03:03 PM: No one ever had any problem with the 14th Amendment until recently. It's worked FINE for about 140 years. The right-wing conservative bigots don't like it because they see lots of HISPANIC children being given citizenship after being born to illegal aliens. If some Irish illegal alien (and there are about 50,000) has a baby, these bigots have no problem with that child being given American citizenship.


    Rob wrote on July 28, 2008 09:02 AM: Interesting Vin. The media portrays and impovrished soul looking for a better life and the poor soul has to steal a life and on and on. Somehow that makes it better. The lazy system of justice is there and you are correct, to do nothing unless it serves their pocket. But my point is, what can be done to fix it? Most people don't want change. We end up with the same low lifes every election. The media is to blame. Most people don't want to spend too much time on politics. Gets in the way of leisure. Get off your butts people and grab your children and teach them. Believe no one else will


    Cisco wrote on July 28, 2008 06:55 AM: The law that allows "Anchor Babies" to be given automatic citizenship needs to be abolished. This antiquated law
    encourages, and not discourages illegal immigration to this country. I'm tired of seeing these people and the businesses that hire them break
    laws at the expense of the legal U. S.
    citizens. Illegal immigrants take an unfair advantage of this country, and it's time to stop this drain of taxpayer's expenses and resources.


    Bill Smith wrote on July 28, 2008 05:01 AM: The way to solve this whole problem is to end all welfare, be it social, corporate, and global. Then people will stop crying about the damn illegals. No more government education, parents will be responsible for their own children. No more food stamps. No more medical care if you can’t pay for it (a charity will more than help out if you really need it). No more McDonalds getting a 40 million welfare check every year. No more Israel getting a 4 billion welfare check every year. Then we could give back all that money to the people who the government stole it from.


    Fathead Republican Elites Love Illegals wrote on July 27, 2008 09:36 PM: I'll say it again: Fathead Republican Elites love illegals and are the power behind the current problem.

    But you will never hear that on AM radio, or on the Fox "News" Channel.


    Joe C wrote on July 27, 2008 07:38 PM: John F,
    Forgetting what city people called for jury duty using voter registration; what they found out was a large number of people called were non-citizens. The story was either on Lou Dobbs or I read it.
    Fact is our federal government, states, and cities have handcuffed accurate stats on how many illegals use social services, hospitals, or are arrested and in prison either by will or law, should be disturbing to many.

    I’m not trying to make you a convert, only that people use common sense.

    The illegal immigration movement backed by greedy business, our government, Mexico, a scandalized Catholic Church paying two billion dollars in court settlements.
    Have great power in stopping our ability to know the actual impact of this issue.

    Understanding actual evidence is important but when it is discovered mainstream media will not air it.

    So we go by the character or action of illegals. Illegally entering the country using fake or stolen ID to work, making disingenuous accusations of racism to silence all opposing them. I question their character.

    So the chances they use fake ID are highly likely and should be considered but I understand much is circumstantial, like the OJ murder trial.


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