Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature

By Ho, James C. | Texas Review of Law & Politics, Fall 2007 | Go to article overview

Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature


Ho, James C., Texas Review of Law & Politics


Chairman Swinford, Chairman King, and distinguished members:

It is an honor to appear before this important joint committee hearing today to examine the issue of birthright citizenship and House Bill 28 by Representative Berman.1

The topic of immigration and border security generates considerable heat and passion. Many Texans feel strongly that America is a nation of immigrants. Many other Texans feel just as strongly that America is-first and foremost-a nation of laws. As both an immigrant and a lawyer, I have a great deal of respect for both sides.

But I am not here to speak about my personal views. Nor am I here to speak on behalf of any particular community or interest group-although I am certainly grateful that the ACLU of Texas has arranged for me to be here today.

Instead, I am here as an attorney who has devoted most of his career to counseling government officials and private sector clients alike about the United States Constitution and the legality of various laws and government actions. I am honored to appear here today to discuss the Fourteenth Amendment guarantee of birthright citizenship.2

Generations of Americans have come to understand that children born in the United States are entitled to U.S. citizenship, regardless of the nationality of their parents. House Bill 28 attempts to effectively do away with birthright citizenship for the U.S.-born children of illegal aliens and undocumented persons here in the great state of Texas.

Let me state at the outset: I have no doubt that Representative Berman's policy views are heartfelt and sincere. Nor do I doubt that many people feel strongly that there is a connection between birthright citizenship and illegal immigration.

But there are many topics of discussion that may be otherwise legitimate but are nevertheless restricted by the United States Constitution. Examples range widely, from campaign finance laws that effectively restrict political speech in violation of the First Amendment,3 to the rule that only 35-year-olds and natural born citizens may serve as President.4 Reasonable people may disagree on the merits of such policies, yet there is no question that the U.S. Constitution imposes important limits on them.

The U.S. Constitution speaks directly to the issue of birthright citizenship. It makes clear that birthright citizenship is a matter of constitutional right-no less for the U.S.-born children of unlawful aliens and undocumented persons than for the descendants of passengers of the Mayflower.

I reach this conclusion based on the text of the Constitution, common law history, legislative history, and U.S. Supreme Court precedent.

We begin-as we always should-with the text of the Constitution. The first sentence of the Fourteenth Amendment states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."5 The motivating purpose of this amendment was to overturn the notorious U.S. Supreme Court decision in Dred Scott.6 But the amendment was drafted broadly to guarantee citizenship to virtually everyone born in the United States.

The critical language of the Fourteenth Amendment is the phrase "subject to the jurisdiction thereof."7 Proponents of repealing birthright citizenship argue that this language excludes all noncitizens-both lawful and unlawful-because "subject to jurisdiction" means allegiance. They point out that noncitizens do not swear allegiance to the United States; they swear allegiance to their home country.

Respectfully, I do not think that that is a reasonable reading of the text. I would submit that the plain meaning of "subject to jurisdiction" is rather straightforward. It simply means that one must have a duty to obey U.S. law. When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. When a company is "subject to the jurisdiction" of a government agency, that company is required to obey the regulations promulgated by that agency. …

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