I wrote this on another web site in 2010, so the issue of birthright American citizenship has been contentious for a long time. But the main points are still relevant, so here you go:
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Constitution "is in need of review."
Senate Minority Leader Mitch McConnell (R-Ky.) told The Hill on Monday that Congress “ought to take a look at” changing the 14th Amendment, which gives the children of illegal immigrants a right to U.S. citizenship.
McConnell’s statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.).
In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the country’s immigration problem.
The 14th Amendment was ratified in 1868. Its intention was to ensure that slaves freed by the Civil War could not be denied citizenship. The part of the amendment for that purpose simply states,
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.
This has been interpreted in the almost 150 years since as meaning that anyone born inside the US or its territories is automatically a citizen.
The 14th Amendment's crafter never imagined "anchor babies."
Babies born to illegal alien mothers within U.S. borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. (Jackpot babies is another term).
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.
For decades after the amendment took effect, American Indians were ruled by federal courts, including the Supreme Court, not to be covered by the 14th Amendment because they were not fully under the jurisdiction of the United States. (The Tribes were then and still are in a treaty relationship with the federal government.) It took a special act of Congress in 1924 to confer citizenship upon American Indians.
In fact, there has never been a federal court that held the 14th Amendment conferred citizenship upon infants born to parents inside the country illegally. It is being done despite that fact.
So at a minimum, Congressional legislation clarifying what birthright citizenship is, within the context of the 14th Amendment, is not only appropriate, it is long overdue. I myself would support a Constitutional amendment to that effect. It would not require repealing or modifying the 14th Amendment. My draft reads:
Amendment 33 - Citizenship by Right of Birth Clarified1. A person shall be a citizen of the United States by right of birth provided that the person is:
a. born in the United States to parents of whom at least one is, at the time of the birth, both a citizen of the United States and a de jure parent of the newborn, or,
b. born in the United States to parents who, though not citizens of the United States, are legally in the United States at the time of the birth, and who are de jure parents of the newborn, or,
c. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth occurs outside the United States because of United States diplomatic mission or military orders of a parent, or,
d. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth and identifying information of the newborn are registered within six months from the date of the birth with a United States diplomatic mission to the jurisdiction wherein the birth occurred.
2. Persons born in the United States and who do not meet a criterion citizenship by right of birth shall not be deprived of due process of law; nor shall any such persons within the jurisdiction of the United States be denied the equal protection of the laws by the United States nor by any State.
3. Congress shall have the power to enforce this amendment by appropriate legislation.
So there you are.
Update: Here are three more links relevant to this topic. First is an article by George Mason law Prof. Ilya Somin, with whom I have corresponded now and then for going on 20 years, though I have never met him in person. I would say he is, overall, a centrist. he says that Trump cannot simply order it. Click here.
Next is George Washington University law Prof. Jonathan Turley, one of the most respected legal scholars in the country. His article is from 2019, "No, It Is Not Racist To Oppose Birthright Citizenship," in which he points out,
... that one of the outcomes was the passage of the 14th Amendment in 1868 to guarantee the rights of citizenship to protect the status of freed American slaves. That much is clear. The problem is that little else is. Since the 14th Amendment was ratified, many leaders have opposed claims of birthright citizenship, including former Senate Majority Leader Harry Reid. Moreover, most countries reject such claims of citizenship. One can be entirely on board with the outcome of the Civil War, not be a racist, and still oppose birthright citizenship.
Finally, here is today's BBC's article, "Trump has vowed to end birthright citizenship. Can he do it?" I read the BBC because in covering American topics, I find it often more balanced and non-partisan than US media. Also, though the article does not say this, foreign nationals enjoy no birthright citizenship in the UK.
