Arizona Law on Birth Rights

The 14th Amendment to the U.S. Constitution 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 amendment was passed in order to guarantee that freed slaves and their offspring would be American Citizens. It’s unlikely that at the time anyone considered the question of the offspring of illegal immigrants.

Historically the phrase as been interpreted to simply mean that, other than under a few exceptions, if you are born within the territory of the United States, then you are an American citizen. Republicans in Arizona are preparing to challenge that interpretation.

Several bills have been introduced in the state legislature to deny citizenship to the children of illegal immigrants born in the U.S. Today, they would automatically be granted citizenship based upon the simple fact of being born here. Under the Arizona bills they would not.

How can they do this? Isn’t this in violation of the 14th Amendment and therefore the U.S. Constitution? Well, perhaps. What the Arizona legislators are really doing is setting up a challenge to the traditional interpretation in the Supreme Court and they are basing that challenge on the phrase “…and subject to the jurisdiction thereof.”

What exactly does that phrase mean? Well, suppose a visiting pregnant monarch gave birth prematurely? It might be a little awkward to say that the monarch’s child, and perhaps heir to a foreign throne, is a citizen of the United States.

The issue of course is that the visiting monarch is not “subject to the jurisdiction thereof” of the United States and neither are diplomats. In the landmark case “U.S. v. Wong Kim Ark” in 1898 the Supreme Court decided that the 14th Amendment must be interpreted based upon English Common Law and included all native-born children except for those who were: (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory.

Unfortunately, if one goes back to the actual debates related to the 14th Amendment in 1866 one can make the case that the phrase is actually synonymous with the phrase “not subject to any foreign power.” This was precisely the phrase used in the Civil Rights act Of 1866 passed by the same Congress as the 14th Amendment. The Civil Rights act declared a citizen to be “all persons born in the United States and not subject to any foreign power.”

So, if that’s what they meant, why isn’t that what they said?

Possibly because there was an intent to change the citizenship definition by expanding it. What about the children of legal immigrants? Many countries maintain the principle that children born to their citizens are likewise citizens and subject to their jurisdiction. Would they be excluded from American citizenship if their parents had immigrated here and not yet taken out American citizenship?

What about an American with a foreign bride (which happens with some regularity given our military adventures abroad)? Any child born to such a union could be claimed by the brides home nation. Would the child then be “subject to a foreign power” and not entitled to natural born citizenship?

The Supreme Court decision made it simple. Other than the three exceptions noted, if you’re born here, you’re an American citizen, and a natural born citizen at that, eligible one day to sit in the Oval Office as President.

Now I’m sure Conservatives will claim that this is an egregious case of Judicial Activism and the court creating law rather than interpreting it. Perhaps, but if the law isn’t allowed to grow with the times, it ceases to provide justice; if it ceases to provide justice, then it is bad law and unworthy of being considered what the Constitution says.

To my mind the Arizona legislators are wrong and, hopefully, the current Supreme Court will agree with the court of 1898 and see it that way as well.