- The Washington Times - Saturday, November 12, 2005

Some Republican lawmakers are considering ending birthright citizenship as we know it. The intriguing legal argument they tout is that the United States has been misinterpreting the Fourteenth Amendment for over 100 years. As a consequence, they argue, the United States awards citizenship to those whom the amendment’s framers never intended — and indeed, whom in some cases, common sense suggests we shouldn’t — like terrorists or agents of foreign powers. Then there is the question of illegal immigration. With a Rasmussen Poll indicating that half of Americans think children of illegals should not automatically receive citizenship, the idea could well grow legs.

The predominant interpretation of the citizenship clause of the Fourteenth Amendment holds that anyone born on U.S. soil is a citizen, except the children of diplomats. But six weeks ago, in testimony before a House Judiciary subcommittee that Hill staffers have since been touting, John C. Eastman, a law professor at Chapman University and a fellow of Claremont Institute, argued that the prevailing interpretation gives more weight to place of birth than originally intended and should be changed.

“Birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate,” he argues, calling birth and jurisdiction “a floor for citizenship.” And indeed the plain language of the clause contains items for both birth and jurisdiction: “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.”

But since the 1898 Supreme Court ruling, United States vs. Won Kim Ark, American courts have elevated birthplace over jurisdiction and allegiance. This has persisted to the present, to the point that last year, in Hamdi v. Rumsfeld, the Supreme Court granted full citizenship protections to Yaser Esam Hamdi, a Taliban fighter captured in Afghanistan who happened to have been born in Louisiana while his Saudi father had been working on a project for Exxon.

What would an end to birthright citizenship mean in policy terms? For one, it would obviate situations like Hamdi v. Rumsfeld, where an enemy fighter successfully claims constitutional protections by way of his birthplace. In that sense, it could reduce some terrorism vulnerabilities. But the more immediate and dramatic effect would likely be on foreign nationals who travel to the United States to give birth — including and perhaps especially illegal aliens.

The illegal-immigration incentive that so-called “anchor babies” create weighs heavily on Republican lawmakers’ minds. Subordinating birthplace to jurisdiction could reduce that incentive.

There are legitimate objections, however, that we expect the proponents to address in the coming months. For one, can it be done without a constitutional amendment? Rep. Jeff Flake, Arizona Republican, thinks it can, but it’s not clear that this is so. Should the United States follow what amounts to a European model of hereditary citizenship? The riots in France are instructive. And third, will this proposal break up families already in the United States?

The fundamental question is whether the benefits of U.S. citizenship should accrue to enemies of the United States, breakers of our immigration laws or those whose primary allegiance is to other powers. On all three counts, the answer seems to us to be no. In the most dangerous cases, like those of Mr. Hamdi and others who wish ill upon America, allegiance would be a better proxy than birth for people deserving of citizenship. But we await the debate, which should give us the details on which to decide.

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