Posted on Aug 31, 2015
Are illegal immigrants entitled to automatic citizenship in the U.S.A.—Citizenship and the Constitution?
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Are illegal immigrants entitled to automatic citizenship in the U.S.A.—Citizenship and the Constitution? This was a Hot topic in this 2016 Election Year as well! Will it change now after the election?
Someone's Perspective - do you agree or disagree?
Born in the U.S.A.—Citizenship and the Constitution
The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship.
August 29, 2015
In your editorial http://www.wsj.com/articles/born-in-the-u-s-a [login to see]
(Aug. 21) you assert that the language of the Fourteenth Amendment is “straightforward.” It is indeed, but it doesn’t mean what you claim. The amendment sets out two requirements for automatic citizenship, not just one.
A person must be born in the U.S. and subject to its jurisdiction, according to the text. Those who drafted the language were quite explicit; the latter phrase meant subject to the “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
As Sen. Jacob Howard explained at the time, the Citizenship Clause excludes not only Indians but “persons born in the U.S. who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
In other words, the phrase didn’t mean what they called “partial” or “territorial” jurisdiction such as applies to “sojourners” who are mere temporary visitors, and it certainly didn’t apply to those who were unlawfully present in the county.
This isn’t “circular restrictionist logic,” as you claim, but simply a reflection that “jurisdiction” has two different meanings. Visitors to the U.S., including illegal immigrants, are subject to our laws—our territorial jurisdiction—while present within our borders, but they are not thereby subject to the more complete political jurisdiction intended by the Fourteenth Amendment.
This was the understanding of the Supreme Court in 1873 and again in 1884. And it was not undermined by the Supreme Court’s 1898 holding in Wong Kim Ark, which recognized that a child born on U.S. soil to lawful, permanent residents was a citizen.
The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship, nor should it, as that would mean citizenship could be obtained not by mutual consent but by illegal conduct.
Prof. John C. Eastman
Fowler School of Law, Chapman University
Orange, Calif.
Someone's Perspective - do you agree or disagree?
Born in the U.S.A.—Citizenship and the Constitution
The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship.
August 29, 2015
In your editorial http://www.wsj.com/articles/born-in-the-u-s-a [login to see]
(Aug. 21) you assert that the language of the Fourteenth Amendment is “straightforward.” It is indeed, but it doesn’t mean what you claim. The amendment sets out two requirements for automatic citizenship, not just one.
A person must be born in the U.S. and subject to its jurisdiction, according to the text. Those who drafted the language were quite explicit; the latter phrase meant subject to the “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
As Sen. Jacob Howard explained at the time, the Citizenship Clause excludes not only Indians but “persons born in the U.S. who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
In other words, the phrase didn’t mean what they called “partial” or “territorial” jurisdiction such as applies to “sojourners” who are mere temporary visitors, and it certainly didn’t apply to those who were unlawfully present in the county.
This isn’t “circular restrictionist logic,” as you claim, but simply a reflection that “jurisdiction” has two different meanings. Visitors to the U.S., including illegal immigrants, are subject to our laws—our territorial jurisdiction—while present within our borders, but they are not thereby subject to the more complete political jurisdiction intended by the Fourteenth Amendment.
This was the understanding of the Supreme Court in 1873 and again in 1884. And it was not undermined by the Supreme Court’s 1898 holding in Wong Kim Ark, which recognized that a child born on U.S. soil to lawful, permanent residents was a citizen.
The Supreme Court has never held that the children of illegal immigrants are entitled to automatic citizenship, nor should it, as that would mean citizenship could be obtained not by mutual consent but by illegal conduct.
Prof. John C. Eastman
Fowler School of Law, Chapman University
Orange, Calif.
Immigration
Supreme Court
Citizenship
Election 2016
Issues
Edited >1 y ago
Posted >1 y ago
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Sir,
Controversial topic but exactly the issues that we need to be having a conversation about rather than the renaming of Mount McKinley. The immigration topic is a very sensible and polarizing subject. It is even more difficult and frustrating for me because I am an immigrant. However, I tend to agree with what Governor Chris Christie said on Sunday morning during his appearance on Fox News Sunday with Chris Wallace. “We need to enforce all the laws regardless if we like them or not.” With this in mind, I will say No ILLEGAL immigrants should not be entitled to automatic citizenship in the U.S.A.
Controversial topic but exactly the issues that we need to be having a conversation about rather than the renaming of Mount McKinley. The immigration topic is a very sensible and polarizing subject. It is even more difficult and frustrating for me because I am an immigrant. However, I tend to agree with what Governor Chris Christie said on Sunday morning during his appearance on Fox News Sunday with Chris Wallace. “We need to enforce all the laws regardless if we like them or not.” With this in mind, I will say No ILLEGAL immigrants should not be entitled to automatic citizenship in the U.S.A.
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MAJ Byron Oyler
CPO Robert (Mac) McGovern - Part of the problem for people doing it right is the cost. I am 100 percent against illegals being here and 100 in favor of a path to citizenship however it cost me as a senior CPT and MAJ $2000 for my wife to do it right. You take someone only making $5/hr and ask them to chose, fed the family or immigrate legally, who blames them for feeding the kids? People talk of making them pay past taxes plus the $2000 fees, where they going to get this money? If we reduced the cost and captured 50% of those illegal, we would bring in about the same money. System would be over taxed and long lines, but it would be a start.
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PVT Raymond Lopez
The Justinian Code says that ignorance of the law is not a defense. All of you here have raised your right arm and of your own free will swore an oath to uphold and defend the Constitution of the United States of the United States against all enemies foreign and domestic and yet you show your ignorance of it! The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by Southern states, which were forced to ratify it in order for them to regain representation in Congress The Southern states contended that former slaves were not citizens rather they were residents and not subject to the protections of citizenship. IT HAD NOTHING TO DO WITH ILLEGAL ALLIENS!!!! I have spent my entire adult in either one of the components of the United States Army or law enforcement so I have some slight experience in Constitutional law.
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SSG David Fetty
CPL Joseph Montgonery - If precedent trumps all, then slaves would still exist. Look to the many rulings on that prior to the Civil War. Heck, even the Dred Scott decision would prove the question. Precedent is only a guideline, and is refuted all the time.
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Sally Webster
Um, I am ok and right on target with Prof. Eastman EXCEPT when he uses the term illegal immigrant.There is no such thing as an illegal immigrant. One is either here illegally and has not properly immigrated into our country or HAS immigrated and is now a legal citizen of the united States of America.
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That's easy... "No"...
Unfortunately, with all of the "rights and benefits they are "entitled" to", they may as well be... Last step... Anything for votes, right? smdh...
For those born here, well... that's a different story all together... but my feeling is that, if a child born here is from illegal parents, then the child is an illegal... with a few exceptions...
Unfortunately, with all of the "rights and benefits they are "entitled" to", they may as well be... Last step... Anything for votes, right? smdh...
For those born here, well... that's a different story all together... but my feeling is that, if a child born here is from illegal parents, then the child is an illegal... with a few exceptions...
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PFC James Craft
Entitlements should be reserved for the handicapped. Social Security is not an entitlement it is a retirement account that was supposed to be managed the Congress who couldn't keep their greedy hands out of it. Instead of free hand outs to people down on their luck they need a hand up to good jobs.
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Sally Webster
Agreed. This is supposed to be a nation of laws. I am ok and right on target with Prof. Eastman EXCEPT when he uses the term illegal immigrant.There is no such thing as an illegal immigrant. One is either here illegally and has not properly immigrated into our country or HAS immigrated and is now a legal citizen of the united States of America.
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COL Mikel J. Burroughs The United States and Canada are the only developed nations that allow birthright citizenship. It's a great tool for nation building but nations reach a point where it is no longer needed and indeed can become a threat to security. Children born here but indoctrinated in other countries can become threats to our nation. On the other hand if we're going to change this then what will the requirement for citizenship be? Will proof of parent's citizenship be required along with proof of U.S. continued residence?
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MCPO Roger Collins
The following are among the nations repealing Birthright Citizenship in recent years:
Australia (2007)
New Zealand (2005)
Ireland (2005)
France (1993)
India (1987)
Malta (1989)
UK (1983)
Portugal (1981)
Australia (2007)
New Zealand (2005)
Ireland (2005)
France (1993)
India (1987)
Malta (1989)
UK (1983)
Portugal (1981)
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SSG William Bowen
2LT Tom Waters, JD - One does not even have to be on the ground. If one is born within 12 miles of the US boundary on a boat or place, they are a US citizen.
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Sgt William Straub Jr.
It's a complicated and confusing law. Legal resident + newborn in US = newborn US citizen,
Illegal Alien + newborn in US should not = newborn US citizen. In my opinion
Illegal Alien + newborn in US should not = newborn US citizen. In my opinion
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COL Mikel J. Burroughs Sir, I don't agree with what the laws say, if you are not a legal citizen, you should not be able to be born into being a U.S. citizen. It is total BS and draws illegals to our country. This is IMO start the bashing if you want.
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SSG William Bowen
SGT (Join to see) - It is illegal and just a few years ago, someone caught in the country illegally was put in removal proceedings no questions asked. Under current policy signed by the president, there are certain criteria that must exist for them to be placed in removal proceedings. This should change soon, like Jan 21st.
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CWO3 (Join to see)
Fortunately, we are all entitled to our "opinion". Nobody can take that from us. It's only when we try to act upon our opinion that we get challenged by authority. It doesn't require law or policy to qualify our opinion but once we do then if it conflicts with law or policy then we will be held accountable. I think that's what causes most of the discourse in conversation online or in person. When others attempt to take away your right to your personal opinion it is usually met with resistance or worse - depending on the level of maturity and presentation of the speakers. I respect others right to their views and assume that by stating it they invite commentary, but will never attempt to take their opinion from them. Free speech is restricted by slander, threats, and fighting words, but free thought is unlimited - up to the point that we act upon it. That's where law and policy come in play.
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SP5 Jeannie Carle
My eldest son, whom we adopted while both serving in So Korea, had to be Naturaliized - millions upon millions of citizens came here the RIGHT way and were Naturalized - NO - they should NOT be given "automatic citizenship". That's a clear slap in the face to those who did it according to law.
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How about "No!" My wife is a green card holder from Germany, when we hear about this on the news or read about it in the paper it really upsets her. Why do illegal immigrants that come to our country get a free pass on becoming a citizen when my wife has to pay all this money to DHS every 10 years to get her card renewed, name changed, or anything else that to do with her immigrant status? She told me the other day, why do I even bother paying for all this...maybe I'll just become an illegal immigrant and I'll get the right of passage like all the other illegal immigrants in the US and get my citizenship.
Some may disagree with this, however I believe as brash and nonpolitically correct as Donald Trump is, he has the right idea in my opinion. You wouldn't get away with being in any other country in the world as an illegal without facing deportation, why are we the safe haven? I understand that things are not good in Mexico or other countries and you want to flee here where it is safer. Ok, well, do through the proper channels and do the right thing. If you want to live in the US, work here, and live the dream, do the right thing, get your documents legally so you don't have to live in fear of being here illegally.
Some may disagree with this, however I believe as brash and nonpolitically correct as Donald Trump is, he has the right idea in my opinion. You wouldn't get away with being in any other country in the world as an illegal without facing deportation, why are we the safe haven? I understand that things are not good in Mexico or other countries and you want to flee here where it is safer. Ok, well, do through the proper channels and do the right thing. If you want to live in the US, work here, and live the dream, do the right thing, get your documents legally so you don't have to live in fear of being here illegally.
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COL Mikel J. Burroughs
TSgt Ryan Lee You bring up a valid point that a lot of other Green Car holders bring up as well and those who go through the correct process to becoime citizens. I think it would be too big of a task to deport all illegal immigrants, but there needs to be a formailzed process that they go through to become a citizen (they need to have a choice). Follow the correct procedure or leave voluntarily! Something to that affect. Its a monumental problem and a bigger problem then most want to admit.
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TSgt Ryan Lee
And it is a problem that will never get solved unfortunately, as much as any "Presidential Candidate" wants to state that they will combat illegal immigration is as much as saying, they will balance the national budget and reduce the national deficit. That is another subject that will never be accomplished unless REALLY drastic spending decisions are made just like our immigration problem.
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SSG William Bowen
You do not have to get your card renewed. There is no expiration for Legal Permanent Residents. It does make it easier to have their status validated if encountered by local police or federal officers with federal immigration authority. The costs are outrageous, which is why US Citizenship & Immigration Services is fully self funded and uses no US tax dollars to operate.
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My understanding is the 14th Amendment was brought into being because there was an argument if former slaves were actually citizens and had the same rights as US citizens that had documentation. Congress made the 14th Amendment a law to remove any doubt that those former slaves and their families born in the US were American citizens. I guess where the gray area comes in is Congress intended this for people that were legally in the US. I am not sure that the color of the law was ever intended for someone not legally allowed to be here to have their child considered a citizen. We have set a precedent over the last 100 years of doing just that. I think this is going to have to go to the Supreme Court it get a final decision.
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COL Mikel J. Burroughs
SGT William Howell I guess you are right, but that is problem that we are faced with today and it needs to be solved.
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SGT William Howell
COL Mikel J. Burroughs Yes Sir, I believe you are right, but somebody much smarter than me if going to have to interpret the law on it. My thought is nobody should be able to sneak into our borders in the first place and we wouldn't even be having this discussion.
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SGT Robert George
2LT Tom Waters, JD - Good point sir , Its gotta be Flint water causing this non sense !!!!
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We're a Jus Soli (right of the soil) nation, in addition to a Jus Sanguini (right of the blood) nation.
If you are born within the confines of the USA borders, you are a US Citizen (Jus Soli). If you have parent(s) who are Citizens, you are a Citizen (Jus Sanguini).
These concepts date back to the Naturalization act of 1790, 1795, & 1802, resp. They are commented on in the Constitution, but not expanded upon explicitly, with the phrases that which mention eligibility for office for the President.
MAJ Keira Brennan expands the "more modern" code, but the concepts are still applicable.
The 14a, merely ended the debate when it came to freed slaves, and those of non-European origin, while the other Acts mentioned further codified the issue.
All that said, I understand that the concept of people coming here illegally, having children so that those children can have a better future might be bad to some people. I understand they view that as tapping our limited resources. I can even agree on some aspects of the argument. However, it is within the rules as written.
In the US, the sins of the father are not passed to the child. We don't believe in corruption of blood. Not even for treason, the only crime we bother to define in the Constitution. Therefore, we sure as hell aren't going to believe in it for something this far down the foodchain. Add that concept to Jus Soli, and this issue becomes moot.
Yes, it creates a second order effect, that we must deal with. But being the greatest nation on the planet means that people are going to want to come here. We're going to have to deal with that reality. We're going to have to figure out how to deal with the unbendable rule of Jus Soli, and with Immigration.
If you are born within the confines of the USA borders, you are a US Citizen (Jus Soli). If you have parent(s) who are Citizens, you are a Citizen (Jus Sanguini).
These concepts date back to the Naturalization act of 1790, 1795, & 1802, resp. They are commented on in the Constitution, but not expanded upon explicitly, with the phrases that which mention eligibility for office for the President.
MAJ Keira Brennan expands the "more modern" code, but the concepts are still applicable.
The 14a, merely ended the debate when it came to freed slaves, and those of non-European origin, while the other Acts mentioned further codified the issue.
All that said, I understand that the concept of people coming here illegally, having children so that those children can have a better future might be bad to some people. I understand they view that as tapping our limited resources. I can even agree on some aspects of the argument. However, it is within the rules as written.
In the US, the sins of the father are not passed to the child. We don't believe in corruption of blood. Not even for treason, the only crime we bother to define in the Constitution. Therefore, we sure as hell aren't going to believe in it for something this far down the foodchain. Add that concept to Jus Soli, and this issue becomes moot.
Yes, it creates a second order effect, that we must deal with. But being the greatest nation on the planet means that people are going to want to come here. We're going to have to deal with that reality. We're going to have to figure out how to deal with the unbendable rule of Jus Soli, and with Immigration.
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SGM Steve Wettstein
Sgt Aaron Kennedy, MS - Good back ground info Aaron but I don't agree with being born into being a citizen if the parents are illegals. Just my opinion. Keep up the AWESOME posts Brother. I love reading them!
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Sgt Aaron Kennedy, MS
SGM Steve Wettstein We've got LOTS of issues in conflict here. Philosophy, Legislatute, and the Constitution.
Philosophically is the biggest barrier. Is this situation Right or Wrong? That's a belief thing, and unfortunately Legislature doesn't address Right/Wrong, it addresses Legal/Illegal. That's the first major hurdle. Second is the Constitution. As the supreme law of the land, it explicity says what is Legal.
So the Constitution sets the Legal precident as Jus Soli. It does'nt say it's Right/Wrong, just that it's Legal. We have to remember those are very distinct concepts.
Now if we were looking at Jus Sanguini, there is specific Legislation which defines "legality" of citizenship for those born outside the US borders. But that Legislation is trumped by the Constitution (14a) when the person is born within our borders.
I am making NO comments on the Morality of the issue, just interpreting the Constitutional argument (as I understand it). There as massive Moral ramifications, however, as I implied in my above post, the Constitution ties our hands. I treat it like an NCO reading any other reg with the word Shall in it. We shall.
Philosophically is the biggest barrier. Is this situation Right or Wrong? That's a belief thing, and unfortunately Legislature doesn't address Right/Wrong, it addresses Legal/Illegal. That's the first major hurdle. Second is the Constitution. As the supreme law of the land, it explicity says what is Legal.
So the Constitution sets the Legal precident as Jus Soli. It does'nt say it's Right/Wrong, just that it's Legal. We have to remember those are very distinct concepts.
Now if we were looking at Jus Sanguini, there is specific Legislation which defines "legality" of citizenship for those born outside the US borders. But that Legislation is trumped by the Constitution (14a) when the person is born within our borders.
I am making NO comments on the Morality of the issue, just interpreting the Constitutional argument (as I understand it). There as massive Moral ramifications, however, as I implied in my above post, the Constitution ties our hands. I treat it like an NCO reading any other reg with the word Shall in it. We shall.
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MAJ (Join to see)
Even with consideration of Jus Soli, there is ambiguity in the definition of "full jurisdiction" in the XIV Amendment that has not been resolved by the courts. If nothing else, the current political conflict should result in a law that causes one side or the other to bring this through the courts finally.
Caveat Emptor.
Caveat Emptor.
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CWO3 (Join to see)
Be thankful that we live in a Nation that allows this conversation and debate. Others are not as fortunate so we should be mindful of that always and enter into debate in a civilized manner. If we don't then leaders might be compelled to act in a hasty manner to quell what they perceive as a threat to the common good. These measures can range from mild censorship through detainment and all the way to death as we find elsewhere in the World. Russia has a record for some pretty bad actions against authors that don't toe the party line. Alexander Litvinenko and Vladimir Kara-Mursa are examples of this. I read this week that China had restricted search engine queries to remove searches for "Fatty Kim the Third" - in reference to the N. Korean leader. Their human rights record is not very good although some are far worse. We can search for whatever we want but some see the US Net Neutrality debate as a first step toward government intervention with the internet. We need to remain vigilant but also thankful for the rights we now enjoy and be careful with how we exercise them.
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I think that this is a question of "practice" rather than constitutional merit. We enforce laws when they suit the powers that be and withhold prosecution when that suits them as well. Judicial activism also plays a part in the interpretation of the law.
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COL Mikel J. Burroughs No sir. Our Nation is great. My family came from Ireland because back in the day, it sucked there. They came legally, with suitcases in hand to start their dream lives, LEGALLY, and did they ever struggle. I support any person that wants to come here and BECOME a citizen. I do not support anyone who sneaks in. Come here, do right, prosper to your ability and live life to the fullest. Support our Nation and we grow.
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COL Mikel J. Burroughs
CMSgt James Nolan I have to agree with you on the legally part! That is definitely my position as well, but how do we fix the problem we have now. It's like we are at Football Game and 20,000 of the people that came into the game don't have a valid ticket. How do we get them back out the door and get them to buy a valid ticket? Much smaller analogy then the current problem!
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CMSgt James Nolan
COL Mikel J. Burroughs That is one of the better analogies that I have heard! So, the way to get them out of the stadium is to quit giving out the free hot dogs and soda. Tell them they can eat all the hot dogs and drink all the soda they want, hell, they can even have popcorn: The price for that is the mere cost of the ticket. Everybody already knows how good they taste, so it would make sense to go buy the ticket. However, if the goodies are free, why pay out of pocket?
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The 14th Amendment, USA v. Wong Kim Ark, 169 U.S. 649 (1898), The Indian Citizenship Act of 1924, and 8 U.S.C. § 1401 pretty much say to me that is you were born here - your a citizen. There's about 150 years of legal precident supporting the idea of "Jus Soli"
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Col Joseph Lenertz
Hmmm...I think Europe is not embracing throngs of refugees. Just reading the news. And I think the US still has the largest legal immigration flow of any nation. We are allowing in the huddled masses...the lamp is still lit. I would argue there is a lawful way to immigrate to the US, and that path is open to all. I would distinguish between those huddled masses and illegal aliens, particularly those who have committed felonies in the US. There is middle ground and a path to citizenship possible for non-felon illegal aliens, but we should not place them above US citizens or legal immigration.
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MCPO Roger Collins
Maj Keira Brennan - USA v. Wong Ark, 169 U.S. 649 (1848) is not applicable. The Chinese were legal workers and did fit in the requirements of the 14th amendment, No one is contesting legal birth citizenship for those here legally, even though the authors of the modification to the 14th amendment specifically stated who did not qualify.
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SGT Robert George
Im not a lawyer but it said born to lawful , permanent residence .. I could be having a brain fart but I dont think we should be allowing loop holes for illegals or immigrants ...Im not being mean but they need to take the time to go through the right process , Its weird how emotion downplays good judgement ....
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