Do the 5th District congressional candidates understand the fallacy of birthright citizenship?
by: Michael Del Rosso
A recent Daily Progress story reports that no 5th District candidate back repealing the 14th Amendment. Let’s hope that is the case, since such an initiative is ill advised and unnecessary.
While the article reports various platitudes and cross accusations by the candidates, it never addresses the issue of “birthright” citizenship and the 14th Amendment, the supposed subject of the article.
Left unclear is each candidate’s position on America’s current policy of “birthright” citizenship for persons born to foreigners (illegal aliens, tourists, etc.).
The reader is also left to wonder what any candidate against “birthright” citizenship might propose to do to correct the present situation, or if they even understand the facts of the issue.
This is shame because the issue is not that complicated.
Specifically, America’s present practice of granting broad “birthright” citizenship is mistaken and based upon ignorance regarding the original intent and language of the 14th Amendment. Overlooked is the 14th Amendment’s requirement that citizenship is contingent that persons be not only born in the United States, but be “subject to the jurisdiction thereof.”
What does “subject to the jurisdiction” mean? The history and original intent of this matter are clear. My Claremont Institute colleague Dr. Edward J. Erler pointed this out in his 1997 testimony before the US House Subcommittee on Immigration and Claims (http://judiciary.house.gov/legacy/6042.htm):
It is my considered opinion that Congress has authority under Section 5 of the Fourteenth Amendment to define the jurisdiction of the United States. Indeed, it is my contention that Congress has exercised that power on many occasions, most recently in the Immigration Reform and Control Act of 1986.
Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the “jurisdiction of the United States”:
[E]very person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Clearly, the author of the citizenship clause intended to count “foreigners,” “aliens,” and those born to “ambassadors or foreign ministers” as outside the “jurisdiction of the United States.” Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent. This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive “their just powers from the consent of the governed.”
While it is apparent that political opportunists like John Boehner and Lindsey Graham, as well as their Progressive comrades in both parties, have a poor understading of, if not disdain for, American principles and the Constitution, we cannot discount that they suggest a constitutional amendment solely as an obfuscation.
They may not know that an amendment is unnecessary, but they do know that an admendment is unlikely to be enacted in a timely fashion, if at all. Such delaying tactics benefit their true objective, “comprehensive” immigration reform. For the uninitiated, “comprehensive” is the code word for granting citizenship to tens of millions of illegals with the hope that the majority will end up in a government-dependant underclass exploitable for crass political gains.
If Americans want to remedy the problem of millions of children of illegal alliens claiming “birthright” citizenship (and we should), all Congress needs to do is pass legislation defining “jurisdiction.” And they should do so with deference and reference to the clear original intent of the 14th Amendment’s author, Senator Jacob Howard. Problem solved.
If judges fail to uphold legislation crafted with a clear foundation of 14th Amendment original intent, then Congress should exercise another of their powers, judicial impeachment. Maybe then we might one day have a judiciary which does respect original intent and which does not legislate from the bench.
America’s broad interpretation of “birthright” citizenship presents a multi-billion dollar liability to our already bankrupt socialist welfare state. This has been true for decades. And for decades legislators and administrations from both parties could have clarified the issue at any time. Yet they did not. It is high time that we no longer tolerate such incompetence, lassitude and dereliction from our elected officials.
Michael J. Del Rosso is a Research Fellow in National Security Policy, The Claremont Institute; and a Senior Fellow for Homeland and National Security, The Center for Security Policy