3 ms·

USA's birthright citizenship is somewhat unique amongst countries. There's nothing wrong with questioning whether continuing the policy is good for America with

by jquery 10y ago

USA's birthright citizenship is somewhat unique amongst countries. There's nothing wrong with questioning whether continuing the policy is good for America with the considerable amount of illegal immigration we have (estimates are that 7.5% of American citizens are born to illegal aliens). Birthright citizenship isn't even universal. For example, birthright citizenship does not apply to diplomats. And the language of the 14th amendment, as to whether it applies to illegal aliens, has never been tested at the Supreme Court level. The key phrase being "and subject to the juridiction thereof". It's certainly at least questionable that children of citizens of other countries born here are subject to our jurisdiction.

tptacek 10y ago
The Citizenship Clause of the 14th Amendment reads, plainly: "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. Earlier drafts of the amendment read differently; for instance, "of parents not owing allegiance to any foreign sovereignty". That the language didn't survive is telling. More telling is the debate about native American tribal sovereignty, in which context the jurisdictional limit makes sense: in effect, you're a citizen if you're born in the US and not subject to the laws of a native American tribe (SCOTUS acknowledged this, in a birthright citizenship case: Elk v Wilkins). Wong Kim Ark is clearer about this: "and subject to the jurisdiction thereof" is a minimalistic way of expressing "everyone born here" except: * Members of Indian tribes * Children born of alien enemies in a hostile occupation * Children of diplomatic representatives of a foreign state In all three cases you have classes of people who are not just aliens, but aliens formally exempted while in the country from some or all of US law. Hence: subject to jurisdiction. So I think we can put to rest the idea that this has gone untested by the Supreme Court. Regardless, the (relatively recent) notion that you can negate ~150 years of birthright citizenship by parsing "and subject to the jurisdiction thereof" is about as credible as the idea that we can ban guns because of the 2nd Amendment's "in a well-regulated militia" qualifier.
- deleted 10y ago
  [deleted]
pcwalton 10y ago
> USA's birthright citizenship is somewhat unique amongst countries. It's certainly not unique. It's the norm in the Americas, including for example Canada: https://en.wikipedia.org/wiki/Jus_soli https://en.wikipedia.org/wiki/Jus_soli > It's certainly at least questionable that children of citizens of other countries born here are subject to our jurisdiction. Some people question whether you have to pay income tax too. Jus soli in the United States is long since settled legal doctrine. Changing it would require a constitutional amendment.
- jack9 10y ago
  > Changing it would require a constitutional amendment. That's a matter of opinion. "Settled legal doctrine" changes all the time. Every administration advances their own agendas by changing the context and arguments or straight up defying a prior decisions. Stating a "my best guess is it needs an amendament" is the only thing that can be said. This is not the same as saying "can't happen without an amendment".
  - pvg 10y ago
    "Settled legal doctrine" changes all the time. Can you think of one with as strong a constitutional basis as birthright citizenship that "changes all the time"? The US government under multiple administrations struggled mightily for decades to revoke the citizenship of a single naturalized Nazi. No administration has the slightest chance of depriving millions of current citizens of citizenship by having strong feelings about it.
deleted 10y ago
[deleted]

by jquery 10y ago

tptacek 10y ago

The Citizenship Clause of the 14th Amendment reads, plainly: "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. Earlier drafts of the amendment read differently; for instance, "of parents not owing allegiance to any foreign sovereignty". That the language didn't survive is telling. More telling is the debate about native American tribal sovereignty, in which context the jurisdictional limit makes sense: in effect, you're a citizen if you're born in the US and not subject to the laws of a native American tribe (SCOTUS acknowledged this, in a birthright citizenship case: Elk v Wilkins). Wong Kim Ark is clearer about this: "and subject to the jurisdiction thereof" is a minimalistic way of expressing "everyone born here" except: * Members of Indian tribes * Children born of alien enemies in a hostile occupation * Children of diplomatic representatives of a foreign state In all three cases you have classes of people who are not just aliens, but aliens formally exempted while in the country from some or all of US law. Hence: subject to jurisdiction. So I think we can put to rest the idea that this has gone untested by the Supreme Court. Regardless, the (relatively recent) notion that you can negate ~150 years of birthright citizenship by parsing "and subject to the jurisdiction thereof" is about as credible as the idea that we can ban guns because of the 2nd Amendment's "in a well-regulated militia" qualifier.

deleted 10y ago
[deleted]

pcwalton 10y ago

> USA's birthright citizenship is somewhat unique amongst countries. It's certainly not unique. It's the norm in the Americas, including for example Canada: https://en.wikipedia.org/wiki/Jus_soli https://en.wikipedia.org/wiki/Jus_soli > It's certainly at least questionable that children of citizens of other countries born here are subject to our jurisdiction. Some people question whether you have to pay income tax too. Jus soli in the United States is long since settled legal doctrine. Changing it would require a constitutional amendment.

jack9 10y ago
> Changing it would require a constitutional amendment. That's a matter of opinion. "Settled legal doctrine" changes all the time. Every administration advances their own agendas by changing the context and arguments or straight up defying a prior decisions. Stating a "my best guess is it needs an amendament" is the only thing that can be said. This is not the same as saying "can't happen without an amendment".
- pvg 10y ago
  "Settled legal doctrine" changes all the time. Can you think of one with as strong a constitutional basis as birthright citizenship that "changes all the time"? The US government under multiple administrations struggled mightily for decades to revoke the citizenship of a single naturalized Nazi. No administration has the slightest chance of depriving millions of current citizens of citizenship by having strong feelings about it.

deleted 10y ago

[deleted]