- The Washington Times - Friday, April 15, 2011

The Citizenship Clause of the 14th Amendment reads: “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.” What were our legislators thinking in 1866?

James C. Ho, writing in “Ban on birthright citizenship unconstitutional” (Commentary, April 11) thinks he knows. He urgently addresses the issue because four “conservative” senators have joined 72 House members in proposing legislation to limit birthright citizenship. Under these bills, only children born to at least one parent who is a citizen or legal immigrant would qualify. This violates what Mr. Ho suggests are “deeply valued” tenets of conservatism.

Mr. Ho begins with the case that serves as a reference point for all birthright issues: U.S. v. Wong Kim Ark (1898). According to the majority opinion rendered by Justice Horace Gray, our fate was predetermined by a 1608 English inheritance case. Jus soli, citizenship based on place of birth, is thus “enshrined” in our constitutional DNA.

According to Mr. Ho, the current reformers base their advocacy merely on different conditions at the time of adoption of the amendment and this has emboldened them to tamper with the true meaning of the Citizenship Clause. This, he argues, violates conservatives’ beloved “original intent.” But what Gray and Mr. Ho hold in common is a determination to avoid the 1866 debate on the clause. Indeed, Gray actually states that the debate has no role in interpreting the key phrase: “subject to the jurisdiction.” As in 1608, therefore, “subject to the jurisdiction” only excludes citizenship for children born here to “diplomats and lawful combatants.”

Readers of the 1866 debate and the earlier debate on the Civil Rights Act of 1866 will find that citizenship was a vexing and highly contentious issue. They will find no mention of jus soli or 1608 or English common law. Following several days of Republican caucus, there was what appeared to me to be an orchestrated dialogue to nail down the meaning of “subject to the jurisdiction.” The aim of Congress was simply to extend citizenship to children born to parents who were loyal to America and to America alone. This is not a surprising goal for a nation wracked by civil war and its shaky aftermath. Section 5 of their handiwork provided for details to be worked out in legislation

That we still cling to unlimited birthright citizenship when every other First World nation except Canada has abandoned it Mr. Ho attributes to “American exceptionalism.” In 1924, American exceptionalism bowed to fears that unlimited immigration would threaten our sovereignty and overwhelm our way of life. Unlimited birthright citizenship is a similar threat. It rewards illegal immigration, promotes dual citizenship and encourages “birth tourism.” The current Wong interpretation authorizes every woman on earth to have a U.S. citizen baby, provided only that she can get here somehow and deliver. Exceptionalism? In the face of such dangers, such pretensions are laughable.



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