Two of our congressional representatives, Republicans Doug Lamborn and Mike Coffman, are co-sponsors of the Birthright Citizenship Act of 2011, which would run counter to the plain language of the 14th Amendment to the U.S. Constitution.
Among other things, the 14th states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .”
Note the requirement to be “subject to the jurisdiction thereof.” Foreign ambassadors to our country are not subject to U.S. jurisdiction — they have “diplomatic immunity” — and so their children, even if born on U.S. soil, are not automatically citizens.
This exception also applied to children born under tribal sovereignty then. They might leave the reservation and become naturalized citizens, but “birthright citizenship” for American Indians born under tribal governments did not become law until 1924.
The 14th Amendment, passed in 1868, was one of the Republican Party’s major achievements.
At the time, the law of the land was still the infamous 1857 Dred Scott case, wherein the U.S. Supreme Court held that even a free black person could not be a citizen, as the American polity was strictly for white folks.
The 14th Amendment superseded that ruling by specifying that if you were born here, no matter what color your skin, you were a citizen.
That seems clear enough, but noted constitutional scholar (and former U.S. congressman from Colorado) Tom Tancredo says that it’s a “ridiculous and unconstitutional policy that automatically grants citizenship to any child born within the borders of the U.S. regardless of the legal status of that child’s parents.”
Presumably, the Republican framers of the 14th Amendment would have excluded the children of illegal immigrants if they’d only thought of it.
The flaw with that speculation is that there was no such thing as an “illegal immigrant” in 1868. American borders were open to all comers; the first federal immigration law (other than the 1808 statute banning the importation of slaves) was not passed until 1875. Since there were no immigration laws, no one could violate them.
Or perhaps Tancredo — and presumably Lamborn and Coffman — believe that the children of illegal immigrants are not citizens because they are somehow not “subject to the jurisdiction thereof.” But if they’re not subject to American jurisdiction, how do you arrest or deport them?
It’s hard to make sense of this attack on the 14th. If they want to try repealing it, the way the 21st Amendment repealed the 18th Amendment and Prohibition, they ought to say so and propose a constitutional amendment, instead of trying to revise its plain meaning with a statute.
The 14th has been criticized on other grounds. States’ rights types don’t like it because it extends the federal Bill of Rights to state governments. It says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” thereby preventing Alabama from establishing an official state religion.
Beyond that, there may be another reason why modern Republicans are so anxious to repudiate one of their party’s great legacies. The 14th says “born,” not “conceived” or “fertilized.” In other words, the Constitution says personhood begins at birth. And that, rather than immigrant babies, is what really perturbs modern Republicans.
Ed Quillen (ekquillen@gmail.com) of Salida is a regular contributor to The Denver Post.