Rep. Nathan Deal, R-Ga. currently has a bill in Congress titled The Birthright Citizenship Act of 2007 which has been the subject of some controversy lately. For starters the usual propaganda is being spewed by those who feel we should be a nation without borders, they argue that this bill is somehow discriminatory against Hispanics, even going so far as to say this bill is un-American. The bill, which currently has 89 co-sponsors is neither discriminatory nor un-American of course, it simply intends to close a loophole in our current immigration system which allows for “anchor babies”.

The 14th Amendment to the United States Constitution states “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”.

This clause has been widely misunderstood as to mean that any child born in this Country, regardless of the status of the parent, was a United States citizen. This is hardly the case, and the Supreme Court has already ruled on this matter in ELK v. WILKINS, 112 U.S. 94 (1884):

The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102] to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired.

This definition put forth by the Supreme Court was taken from the Slaughterhouse cases which ruled:

The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (emphasis mine)

Aside from the above referenced exemptions, there are also exemptions for “Indians not taxed”. I don’t believe it would be very difficult to convince a panel of judges that an illegal alien who is not taxed should fall under the same criteria as an American Indian who is not taxed with regards to citizenship.

What The Birthright Citizenship Act of 2007 attempts to do is not circumvent the Constitution, but to define who is, or is not subject the to the jurisdiction of the United States. The Supreme Court has ruled that in order to be subject to the jurisdiction of the United States, it is not enough to be “merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance“. This is why the children of foreign ambassadors born on United States soil are not United States citizens by birth, because their parents direct and immediate allegiance is to their home country, therefore the newly born child’s allegiance must be to the same.

There are those who will argue that in order for this bill to pass it must be done by way of a Constitutional Amendment. I do not believe this to be the case. By defining the necessary criteria in order to be considered subject the jurisdiction of the United States, The Birthright Citizenship Act of 2007 is merely turning case law into statutory law.

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Constitution, Fourteenth Amendment, Immigration, Politics, Supreme Court