Lindsey Graham Pledges to End “Birthright Citizenship” with Constitutional Amendment
July 29, 2010 by Shannon44
Filed under Discussion
In a surprise move for a politician who has long been a proponent of amnesty for illegal aliens, Lindsey Graham last night told Greta Van Susteren he would introduce a Constitutional amendment that would end “birthright citizenship” wherein babies born to foreigners on U.S. soil are automatically granted citizenship.
Such an amendment would prevent the creation of “anchor babies” born to illegal aliens. These babies’ automatic citizenship nearly always allows their foreign parents to remain in the United States despite their illegal entry.
Graham first said he was “considering” introducing the amendment but when pressed by Van Susteren, responded with “I got to (introduce it).”
It is very difficult to pass a Constitutional amendment as it requires the vote of 2/3 of both the House of Representatives and the Senate. In this case, the amendment can pass only with solid conservative majorities in both houses.
I’m left wondering by this news. With his permissive stance on immigration in general and amnesty in particular, and the administration’s very obvious intent to allow and award illegal immigrants all the rights and privileges of those of us who have worked and paid our way for all or most of our adult lives, is Graham really serious? Perhaps not. He might be introducing this “surprise” amendment because he knows damn well it won’t go anywhere.
I was listening to Mark Levin tonight, and he had a great bit on Graham’s amendment thing. First, he says that Graham is grand standing because he (Graham) knows that the proposal will go nowhere. Then, Levin argues that the 14th amendment has been “violated” for decades, with respect to the anchor baby thing. He said further that no new amendment is needed because the 14th stands just fine as is. As an example, he said if a visiting pregnant French lady (here legally, I presume) unexpectedly gives birth here, it is ridiculous to assume that the kid is automatically a US citizen! So, if she were here illegally, the kid would be a citizen?? Nuts! The key is that, in the 14th amendment, in article 1, it is stated “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.” Levin argues that the illegal alien is NOT subject to the jurisdiction of the US (because they are here illegally) , but to their own country of origin; thus, so is the child subject to the jurisdiction of the parent’s country of origin.
Just because the Constitution has been ignored for decades does not mean that an amendment is needed. He argues, and I agree, that we need to just follow the Constitution! More details of his argument will probably be on his website before the weekend.
I’m not so sure the 14th is strong enough. The 14th talks about “persons born or naturalized.” I’m naturalized and thus subject to the jurisdiction of the US, not to my native country, no question about that. Lumped in right next to me is a child born here, thus not subject to its non-citizen parents’ country of origin but rather the jurisdiction of the US, just like me. The Amendment doesn’t specify that, e.g., at least one of the child’s parents be a US citizen, nor does it provide an exception, e.g., except where both the child’s parents are not US citizens. It seems very clear: born OR naturalized. Period.
A stronger argument might be the intent of the Amendment. When it was created the US desperately needed an increased population and, I suspect, because immigrants came into this enormous country at relatively few specified points, it was more practical to award citizenship automatically to new progeny than for the parents to try and travel to an immigration center. I just don’t know if intent plays a part in the interpretation of the Constitution as it does with the law in general.
The wording will have to be clarified, as it has been in the UK and Ireland in the recent past, countries about which I have personal knowledge.
I can tell you that my son, who was born in the UK to an American father and English mother, was awarded dual citizenship. The reciprocal agreement between the two countries provides that the the parents may choose one or the other citizenship for the child (and could use a passport from either country) or, when the child reached his 21st birthday, he could choose for himself which country he wanted as his own. I thought it right for my son to choose for himself–he chose wisely!
I’m looking at an analysis of the birthright part of the 14th and, right away, I spot a huge error on my part. Slavery and emancipation. It’s not a significant part of the British history I learned so it didn’t occur to me that the intent of the Amendment was to ensure that the newly emancipated slaves and their children had the right of citizenship, denied to them by certain of the individual states.
I hate not completely understanding something about which I “feel” strongly, so I’m going to delve further, find a good, logical, reasoned analysis and get back here when I know more!
I don’t have the length of time necessary to perform an exhaustive search and summary of the numerous interpretations and analyses of the 14th Amendment. I’m going to be guided by the sense of logic and experience I gained from 15 years in the legal field. Disclaimer: I am not a lawyer; I worked first as a legal secretary, then as a general paralegal, and later as a litigation assistant. The analysis I chose is written by Fred Elbel and cogently sets out the intent of the Amendment. Elbel is a spokesperson for the Colorado Alliance for Immigration Reform and is its former Director.
Explaining how the Amendment came about and left room for the misinterpretation that ensued, Elbel says:
The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.
A very important part of laying the groundwork for an “intent” interpretation on the birthright clause is set out by Senator Jacob Howard as the Amendment was being formulated, two years before it was ratified. Sen. Howard clarified:
“Every 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.”
Elbel concludes:
The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.
In citing Elk v. Wilkins (1884) to bolster his argument, Elbel says:
The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe “direct and immediate allegiance” to the U.S. and be “completely subject” to its jurisdiction. In other words, they must be United States citizens.
There are other cases cited by Elbel which indicate that the citizenship status of the parents determines that of their child.
Elbel adds that there are “between 300,000 and 700,000 anchor babies born each year in the U.S.” In the “What Can Be Done” section, the author asserts that a Constitutional amendment, as proposed by Sen. Graham, is not necessary: “The 14th Amendment itself stipulates that Congress has the power to enforce its provisions by enactment of legislation. . . . Therefore, an act of Congress stating its interpretation of the 14th Amendment – as not including the offspring of illegal aliens – is long overdue.”
That same section lists several bills introduced into Congress since 2001 to remedy the anchor babies situation and notes that none have thus far survived. Apparently, the last bill introduced is H.R. 1868, The Birthright Citizenship Act of 2009, from Rep. Nathan Deal (R-GA) on April 2, 2009. From what I can tell, it’s stalled, because the last action noted is over a year ago: “May 26, 2009: Referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.” Reps. James Barrett, Henry Brown and Addison Wilson’s names are among 93 co-sponsors of the bill. (See here.)
What makes Lindsay Graham think that his bill will do any better? (That was rhetorical. We know the answer.)
It’s a tight, well-written piece and I recommend it. Click here for the full article.