Photo by Chuck Coker/Flickr (Creative Commons)
U.S. Constitution art, September 2008
Yesterday I wrapped up a weeklong series of posts on the battle over birthright citizenship and the 14th Amendment of the Constitution, which as interpreted guarantees citizenship to all those born on U.S. soil.
The series coincided with the introduction of four anti-birthright citizenship bills filed last week in Arizona, intended to force a Supreme Court reinterpretation of the amendment. These were among several related measures filed last month by Republican legislators in Congress and in two other states, all intended to eventually deny citizenship to children of undocumented immigrants.
Along the way, I’ve appreciated a number of interesting comments from Multi-American readers. Some came from readers who appeared to have a legal background (“As any first year law student knows…” one comment began), making for a great discussion on a complicated topic.
Two replies in particular stood out, both of them in response to one post outlining the basics of the debate and the legal arguments surrounding it.
Domingo wrote regarding a comment cited in the post from attorney and now Kansas secretary of state Kris Kobach, who helped draft model legislation to challenge birthright citizenship. Kobach had remarked to the National Review: “There are two very powerful reasons why I think the majority of the Supreme Court would agree with us. And one is that every ounce of evidence of original intent says that our understanding is correct,” says Kobach, remarking that the framers of the Fourteenth Amendment intended that birthright citizenship be given only to children whose parents had no allegiance to a different country.”
In the case of jus sanguines, perhaps; but insofar as jus soli is concerned, the “allegiance” of the parents is of no moment; rather, what matters is the RECIPROCAL “allegiance” that “all persons born in the United States” are OBLIGATED to owe the United States, the sovereign at their place of nativity, at the moment of birth in return for the guarantee of sovereign “protection.”
Minor v. Happersett (1874) clarified this reciprocity: “Allegiance and protection are, in this connection [that is, in relation to citizenship] reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance.”
Thus, allegiance in compensation for protection is the sole determinant to citizenship and the unifier of the two distinct class of citizens–the “natural-born” (allegiance owed at birth) and the “naturalized” (allegiance pledged subsequent to birth)–which marks both of them off from an “alien” who owes allegiance to a foreign power.
As elucidated in U.S. v. Wong Kim Ark (1898), by this circumstance of “birth in the United States,” the person so born “is subjected to the duty of allegiance which is claimed and enforced by the sovereign [the United States] and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term ‘citizenship.’”
In other words, in compensation for the benefits and privileges of citizenship conferred (particularly at birth extended to the child of “illegal” Mexican immigrants), all persons so born are likewise obligated (technically, at birth) to pledge, reciprocally, their willingness to, among others–sacrifice life and fortune to defend the Constitution and the United States.
Cristi commented on the chief argument of those seeking a judicial reinterpretation of the 14th Amendment, the first line of which reads: "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." Proponents of the state bills believe that "subject to the jurisdiction" should exclude undocumented immigrants and their children.
As any first year law student knows, “jurisdiction” is a basic concept in American law. With few exceptions (diplomats with immunity), every person present in a country, a state, a local community is under jurisdiction of that government, meaning that they can be subject to arrest, to prosecution by the Courts — indeed, to deportation. Such a person can also invoke the government’s protections when necessary — they don’t need to be citizens.
It would be a radical re-interpretation, indeed, to say that American federal, state and local governments only have “jursdiction” of those people present within their borders who are “legally” authorized to be there. That would mean that we could not prosecute an undocument immigrant if they committed a crime.
We could not compel them (via subpoena) to be a witness in Court if they witnessed a crime? We could not use the Courts to make them pay a debt if they owed it? That would be the logical extension of Kobach’s argument. And, it doesn’t make any sense at all to me.
Although the legal counsel tapped by anti-birthright citizenship legislators believe otherwise, many legal and immigration experts doubt the proposals will go as far as proponents hope. But if any states approve laws based on these bills and land in federal court, it will be a fight to watch.