Birthright Citizenship

[sumpnz]

https://hotair.com/archives/jazz-shaw/2020/01/23/come-birth-tourism-restrictions/

Seems to me the easiest and most Constitutionally defensible solution is to restrict birthright citizenship to children of citizens, permenant residents, and possibly immigrant visa holders.  That would eliminate it for illegal immigrants, birth tourists, etc which is probably the vast majority of the problem.

[Hawkmoon]

It is a problem that needs to be addressed. I'm not sure it can be fixed without a Constitutional amendment. The 14th Amendment says:

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.

On the one hand, it says all persons born in the United States shall be citizens. But it then talks about the state in which they reside, and a tourist is not a resident of any state. So you may be onto something.

[dogmush]

I suspect that given the current trend in American politics any attempt to deny citizenship to people born in the US of foreign parents here on tourist visa's would end up before the Supreme Court.  That's probably appropriate as well, given this isn't exactly a traffic ticket.

Lawyers would probably talk themselves into knots about that very clause: "the State wherein they reside".  What is residence?  If the parents get an electric bill, does that count?  People can reside in Hotel's for years, how long is a minimum time for residence? I'm sure there's a variety of other quibbles that could be made.

At very first glance, and being aware of the issues we face with Birth tourism, I tend to think if there's any question at all in how a law is written, the USSC should default to the position which gives the government less power and the individual more.  Which in this case would be that anyone born here is residing here as of that instant, and a citizen.  If it's really that much of an issue, change the amendment.

If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.

[Ron]

I seem to recall the authors of the amendment being on record that that wasn't their intent.

It's been awhile since i looked into the issue so any links I kept are gone.

The "subject to the jurisdiction thereof" has a specific meaning also.

[Ben]

I do worry about the effects of birth tourism, as much so as the effects of baby birthers sneaking in from the southern border popping out kids on US soil. I should read up on it more, but I'm really not sure what the benefits are to the birth tourism people. These are generally very wealthy people, so it doesn't seem they're doing it for "free stuff". Are there really solid reasons (nefarious or not) behind it, or is it some kind of international rich person's fad?

I don't like to see the system taken advantage of. I say this as a child born to non-citizen parents. I was born soon after my parents arrived on American soil. They became citizens as soon as they could, but not before I made my appearance.

[brimic]

Get rid of 'free stuff' and most of the issues of immigration, border fences, and birthright citizenship become non-issues.

[cordex]

These are generally very wealthy people, so it doesn't seem they're doing it for "free stuff". Are there really solid reasons (nefarious or not) behind it, or is it some kind of international rich person's fad?

Seems like it would make seeking education and work in the US much easier for the kid.  Also gives them a ripcord to pull if things go sideways in their country.

[DittoHead]

If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.

I don't know about that. Anyone have numbers?
While I do agree it's a problem, I have a hard time believing it's more than a drop in the bucket compared to citizen births.

[Ben]

Seems like it would make seeking education and work in the US much easier for the kid.  Also gives them a ripcord to pull if things go sideways in their country.

That's a good point. Before I left Santa Barbara, my condo complex, near UCSB, was getting bought up by Chinese and ME parents who were sending their kids to UCSB. They found buying a condo (vs renting) a good investment, so were basically buying their kids condos and Beemers to attend school. Given how may of them want to give their kids a US education, I can see that "plus" for the tourism.

If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.

[Dons tinfoil hat] Watching Fox Business this morning, they said China, Russia, and Turkey(?) were by far the greatest percentage of birther tourists. Again, tinfoil in place, China, for example is a very old country. Despite many "governments" over the last couple thousand years, I suspect that culturally, thinking in terms of twenty years ahead is the same as us, in our ~250 year old country, thinking two years ahead.  I could easily seeing them looking at a 20-30 year plan to grow US citizen Chinese assets.

[Hawkmoon]

I suspect that given the current trend in American politics any attempt to deny citizenship to people born in the US of foreign parents here on tourist visa's would end up before the Supreme Court.  That's probably appropriate as well, given this isn't exactly a traffic ticket.

Lawyers would probably talk themselves into knots about that very clause: "the State wherein they reside".  What is residence?  If the parents get an electric bill, does that count?  People can reside in Hotel's for years, how long is a minimum time for residence? I'm sure there's a variety of other quibbles that could be made.

I know I'm a simple-minded sort of chap but, IMHO, the notion of a "tourist" visa might be a good place to start when asking who is a resident and who isn't. The stickier wicket will be the illegal aliens, who ARE residents -- just not legally so.

[sumpnz]

"All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States ..."

That "and" I think is key.  Are aliens present illegally or on a non-immigrant visa "subject to the jurisdiction" of the USA?  IANAL and all, but I think a good argument can be made that the answer is no. 

[De Selby]

If you can be hauled before a court in the US to answer a claim or charge, you are subject to its jurisdiction.

The problem with trying to interpret out birthright citizenship is that the clause was specifically drafted to ensure children of people who arguably weren’t citizens (slaves) were in fact deemed to be citizens. That being the history and intent of the clause, it’s near impossible to twist the language to fit modern immigration issues.

New rules that don’t specifically make the children of non-citizens into citizens require new text.

[Andiron]

If you can be hauled before a court in the US to answer a claim or charge, you are subject to its jurisdiction.

The problem with trying to interpret out birthright citizenship is that the clause was specifically drafted to ensure children of people who arguably weren’t citizens (slaves) were in fact deemed to be citizens. That being the history and intent of the clause, it’s near impossible to twist the language to fit modern immigration issues.

New rules that don’t specifically make the children of non-citizens into citizens require new text.

Bull.

I got a speeding ticket in Iceland one time and that doesn't make me a citizen of Iceland, though I'm obligated to pay it.


Traffic camera,  for the curious.  for 3 MPH over.  Not paying proper attention while driving in KMH vs MPH is expensive.

[TommyGunn]

It is a problem that needs to be addressed. I'm not sure it can be fixed without a Constitutional amendment. The 14th Amendment says:

On the one hand, it says all persons born in the United States shall be citizens. But it then talks about the state in which they reside, and a tourist is not a resident of any state. So you may be onto something.

A point of contention is what the authors meant by "subject to its jurisdiction" means.   Despite Deselby's  generic assertion,  it seems authorities are divided on this point.   An authoritative text I have has stated that one author of the 14th am.  included a phrase specifically stating it did not apply to immigrants or visitors.  This wording did not make it into the final draft....possibly  because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."

Complicating the matter is that there are atleast two prior court decisions stating that, indeed,  if you are born in America, then you are a citizen.   So, "stare decisis."

It isn't as easy to suss out true intents as one might think  hope ....

[Hawkmoon]

A point of contention is what the authors meant by "subject to its jurisdiction" means.   Despite Deselby's  generic assertion,  it seems authorities are divided on this point.   An authoritative text I have has stated that one author of the 14th am.  included a phrase specifically stating it did not apply to immigrants or visitors.  This wording did not make it into the final draft....possibly  because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."

Complicating the matter is that there are atleast two prior court decisions stating that, indeed,  if you are born in America, then you are a citizen.   So, "stare decisis."

It isn't as easy to suss out true intents as one might think  hope ....

Sort of like the final wording of the Second Amendment.

As if we needed proof that if there's any way for future generations to misconstrue the intent of laws if the drafters leave out the parts they consider "redundant" -- they will always default to misinterpreting them.

[RoadKingLarry]

Always read a proposed law with the worst possible interpretation and intent in mind.

[De Selby]

Bull.

I got a speeding ticket in Iceland one time and that doesn't make me a citizen of Iceland, though I'm obligated to pay it.


Traffic camera,  for the curious.  for 3 MPH over.  Not paying proper attention while driving in KMH vs MPH is expensive.

Is this for real? “Subject to the jurisdiction of” (which you were in Iceland) is part of the text of the US constitution that specified criteria for citizenship.

What possible relationship could this example have to Icelandic rules about citizenship? I can’t see how any of this is remotely relevant to what we are talking about.

[De Selby]

A point of contention is what the authors meant by "subject to its jurisdiction" means.   Despite Deselby's  generic assertion,  it seems authorities are divided on this point.   An authoritative text I have has stated that one author of the 14th am.  included a phrase specifically stating it did not apply to immigrants or visitors.  This wording did not make it into the final draft....possibly  because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."

Complicating the matter is that there are atleast two prior court decisions stating that, indeed,  if you are born in America, then you are a citizen.   So, "stare decisis."

It isn't as easy to suss out true intents as one might think  hope ....

The authorities are not divided on this. The relevant Supreme Court decision is clear on the question. There are no competing Supreme Court decisions.

The intent of the clause was to ensure people born in the US were citizens, even if their parents were not (it was a direct response to the dredd Scott decision.

The history of the amendment is why it gets interpreted this way, and why it can’t be interpreted away. It does what it was intended to do - confer citizenship on people born in the US even when their parents may not have been citizens.

[TommyGunn]

Sorry, DeSelby, the authorities are divided on this,  because .... they ARE divided.

It happens when authorities DISAGREE with each other.  It happens.  

Take the 2nd amendment.  To me, it's intent is 100% clear.   But experts --  er,  "experts"  have disagreed.

I've seen it happen.   It's happened on the 14th, too, like it or not.  It's what "subject to its jurisdiction" meant at the time .... versus two court decisions. And with regard to that quoted phrase,  what the authors intended, versus court decisions.

I'm not saying you're wrong .... I don't have a dog in the fight, just an ant.  

[Fly320s]

Always read a proposed law with the worst possible interpretation and intent in mind.

Excellent advice.

[Ron]

The authorities are not divided on this. The relevant Supreme Court decision is clear on the question. There are no competing Supreme Court decisions.

The intent of the clause was to ensure people born in the US were citizens, even if their parents were not (it was a direct response to the dredd Scott decision.

The history of the amendment is why it gets interpreted this way, and why it can’t be interpreted away. It does what it was intended to do - confer citizenship on people born in the US even when their parents may not have been citizens.

It's not as clear as your rhetoric insinuates.

https://www.heritage.org/the-constitution/report/birthright-citizenship-and-the-constitution

[Pb]

At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out.  There are good arguments to made either way.

"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.

[Ron]

At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out.  There are good arguments to made either way.

"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.

Try squaring the circle of the plethora of US "citizens" with dual citizenship.


Congress needs to clarify by ending both birthright and dual citizenship.

[De Selby]

It's not as clear as your rhetoric insinuates.

https://www.heritage.org/the-constitution/report/birthright-citizenship-and-the-constitution

This illustrates my point. In defence of saying it’s not clear, you cite a soft sciences professor from one of the most politically charged think tanks in the country. Not a Supreme Court decision, not a Supreme Court judge, not even a quote from a politician who drafted the amendment or debated it.

“Authority” surely means something other than what’s at that link.

[De Selby]

At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out.  There are good arguments to made either way.

"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.

You seriously think no one arrived illegally by boat or land at that time??

Either way, Indians were in fact legally treated as sovereigns in many respects, just like diplomats. Hence the jurisdictional clause. At those times the USA recognised tribes as foreign nations, which they still consider themselves to be in some parts.