ANCHORS AWAY

What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

LIBRARY OF LAW AND LIBERTY - Excerpt:

Now, in fairness, other respected commentators take a contrary position, including the conservative attorney James Ho. But a considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the assertions of some (including the editorial page of the Wall Street Journal and Ben Domenech, publisher of The Federalist), amending the 14th Amendment is not required. In fact, such legislation has been introduced in the past—for example, S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)—and supported by Republicans and Democrats. That includes former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil. In Oforji, Judge Posner stated that “I hope [H.R.1567] passes.”

The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. The oft-cited United States v. Wong Kim Ark (1898) involved the offspring of a Chinese couple present in the United States legally. And the frequently cited language from Plyler v. Doe (1982)—a 5 to 4 decision written by the activist Justice William Brennan, hardly a strong authority—is dicta contained in a footnote! Automatic birthright citizenship for tourists and illegal immigrants is an anomaly; the United States and Canada are the only developed countries in the world to recognize it. No European country does. American voters overwhelmingly oppose birthright citizenship, by almost 2 to 1 according to a recent Rasmussen poll. Regardless whether one supports Donald Trump for President, he has raised an important issue and provoked a long overdue discussion of the subject of birthright citizenship. For that, he deserves credit.

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