14th Amendment: Is Birthright Citizenship Really in the Constitution?

By Grier, Peter | The Christian Science Monitor, August 11, 2010 | Go to article overview

14th Amendment: Is Birthright Citizenship Really in the Constitution?


Grier, Peter, The Christian Science Monitor


Congress could deny birthright citizenship to the children of illegal immigrants, say some experts. But others believe that changing citizenship policy requires changing the 14th Amendment.

Is "birthright citizenship" - the policy of granting US citizenship to every child born on national soil - really enshrined in the US Constitution? Some experts believe it isn't.

Congress, they say, could regulate who qualifies for birthright citizenship via legislation, within limits. Lawmakers might deny it to children born in the US to illegal immigrants, for example.

This could be an important legal distinction. Circumscribing birthright citizenship with a bill would be very difficult, particularly while President Obama remains in office. But doing the same thing via the direct route of amending the Constitution would be virtually impossible.

"We do not need to amend the Constitution to end birthright citizenship," said Rep. Lamar Smith (R) of Texas in a statement issued Tuesday.

Birthright citizenship is a hot topic in Washington nowadays because some congressional Republicans have become increasingly vocal about a desire to deny such status to the children of parents who are residing in the US illegally. The GOP leaders of both the House and Senate have said they favor holding hearings on the issue, at the least.

Many legal scholars believe that changing the policy would require changing the 14th Amendment to the Constitution, on which birthright citizenship is based. But "many" legal scholars is not the same thing as "all."

Section 1 of the 14th Amendment begins this way: "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."

The key phrase here is "subject to the jurisdiction thereof," say some experts.

Illegal immigrants are not subject to US jurisdiction, in the sense that they cannot be drafted into the US military or tried for treason against the US, said John Eastman, a professor at the Chapman University School of Law, in a media conference call Monday. …

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