Born in the USA—But Does that Guarantee Citizenship?

By Martha J. Heil
American Bar Association
Aug. 4, 2011

TORONTO — Does the 14th Amendment provide that children born in this country automatically become citizens? And if it doesn’t, should we fix it? A debate on that topic today at the American Bar Association’s Annual Meeting covered several centuries of legislation but started with just three words.

Those words, “subject to jurisdiction,” are a clause in the amendment to the U.S. Constitution that defines who is an American citizen.

Panelist John Eastman, a professor of law at Chapman University School of Law in Orange, Calif., defended an originalist point of view. “The framers of the Constitution specified full and complete jurisdiction, not temporary jurisdiction, and this means citizens and lawful permanent residents.”

The framers seemed to want to exclude Native Americans and foreign ambassadors’ children, said Rogers Smith of the University of Pennsylvania, in Philadelphia.

Bruce Einhorn, a retired federal judge who is now a professor at Pepperdine University School of Law, added, “If you do believe in originalism, the framers of Reconstruction need to be considered too. As the Civil War ended, the era of Reconstruction created a democratic republic.  For the first time in our history, we ensured the liberty of individuals regardless of racial characteristics.”

“John Marshall wrote in 1812 that aliens are not exempt from jurisdiction, except for foreign rulers, diplomats or invading armies,” said Margaret Stock, a retired lieutenant colonel in the U.S. Army Reserve and Professor at the University of Alaska, Anchorage.

Many people are arguing that rules for becoming a U.S. citizen should be changed, she said. “But there is no agreement on what the new rule should be.”

In the last five years, Smith said, state and local officials have followed Kansas law professor Kris Kobach, his former student, “in the belief that the U.S. government has no immigration policy or strategy, so states and locales should adopt one against illegal immigrants and enforce that policy vigorously.” Smith disagreed with steps that would produce this type of attrition by enforcement.

Eastman advocated a solution that has been presented in many state legislatures – adding space on birth certificates to verify the citizenship of the parents.

Thomas Saenz said that idea of a checkbox started with a legislator who was the author of Arizona’s hotly debated immigration enforcement measure, SB1070. Saenz said that this legislator wanted to make it difficult for children of undocumented residents to get a birth certificate.

Stock gave a list of practical objections to modifying the 14th Amendment through laws in Congress. “If we get rid of birthright citizenship, we will lose our tax base, but we will also lose the benefit of those who are not born in the U.S. [while] we take advantage of their services,” she said. “Actually, the U.S. will get more undocumented immigration, because second, third, and fourth generations will also be illegal. We will have social disruption, discrimination and we’ll go back to the Dred Scott era.”

Saenz said that the consequences of having a checkbox on birth certificates would mean a lot more undocumented children.  “More mothers would avoid hospital births, because they would be afraid the information about their illegal status would be used against them.”

Saenz also cited a proposal to add a question about citizenship to the 2010 census. “In determining who should represent the people, the intention of this question would be to completely discount the undocumented.”

The ABA Annual Meeting takes place in Toronto Aug. 4-9. “The Battle Over Birthright Citizenship: History, International Perspectives and the Path Ahead” was sponsored by the ABA Commission on Immigration.