Occasionally a state legislature will pass a law so blatantly unconstitutional that even the tamest mainstream media outlets refuse to be diplomatic and pretend otherwise. It seems like a fantastic waste of time and resources to pass such legislation but it is usually an effort, driven by well-funded interest groups, to force an issue before the U.S. Supreme Court. Most of the truly wacky anti-abortion legislation – say, an Oklahoma law that allows physicians to withhold ultrasounds from pregnant women if it reveals birth defects that may lead her to consider abortion – is a transparent attempt to goad the Supreme Court into rehashing Roe v. Wade.
So when Arizona's state legislature – and by the way, Arizona must be butter because it's on a ROLL lately – proposes legislation to forbid birthright citizenship to babies born in Arizona of illegal immigrant parents, we recognize their larger goal. That a state cannot pass a law altering Federal immigration and citizenship policy is so obvious that it requires no comment. That this law is bound to work its way into Federal court is equally obvious. I'm afraid, however, that anti-immigrant people may get exactly what they want from the Courts this time.
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American citizenship is available through three avenues: naturalization, jus soli (literally "law of the ground" or "soil"), or jus sanguinis ("law of blood"). In other words one can apply for citizenship or be born with it either by being born on U.
S. territory or being born of two American citizen parents (even if born outside of the U.S.) The Arizona law would try to redefine jus soli, which, unlike many aspects of citizenship law, rests on particularly shaky ground.
Jus soli is based on the 14th Amendment, which states that, "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." Like so many Constitutional provisions, there is an obvious subjective component to this language: what exactly does "subject to the jurisdiction thereof" mean? Is 'jurisdiction' being subject to the laws of the US? If so, than anyone physically present in the US meets the definition. Does 'jurisdiction' imply citizenship or legal residence?
Let's just say it would not be difficult to make that argument. Not at all.
The Court ruled on that issue in one of the most important – even if not the most well known – decisions in its history: US v. Wong Kim Ark (1898). Wong was born in California to two Chinese citizens. As an adult he was denied re-entry into the US after a visit to China because he was not a citizen by virtue of his parents' Chinese citizenship. Eventually the Court ruled in Wong's favor (following the British common law application of jus soli) stating that a child born in the U.S. of two non-citizen parents is a birthright citizen as long as the following conditions exist:
1. The parents are not born of foreign diplomats.
2. The parents are not hostile forces occupying U.S. territory by force.
3. The parents have permanent residence in the U.S.
The problem is that Wong's parents were legal residents of California, hence the decision does not tell us whether or not "subject to the jurisdiction thereof" requires residence or legal residence. "Permanent" residence does not imply legal residence, hence the decision has been interpreted to mean that anyone born on U.S. soil is an American citizen. As far as defining jus soli in the United States, this case is pretty much it. The concept of birthright citizenship rests on an interpretation of the Constitution, not the Constitution itself. The language is too vague to permit the latter. It would not be difficult to make a plausible argument that the Wong decision need not automatically apply jus soli to the children of illegal immigrants depending on what constitutes jurisdiction. To be honest, I think that's a pretty good argument.
In short, I will not be even slightly shocked if the current Court – with its four vote block of ultra-conservatives – were to offer a different interpretation of "jurisdiction" that excludes illegal residents. I am personally ambivalent about this issue. I don't lie awake at night worrying about "anchor babies" and how the imm'grunts are a-comin' to take our jobs and women. The problem of illegal immigration is caused entirely by lax enforcement (or non-enforcement) of immigration law, which in turn is a function of campaign contributions from businesses that thrive off illegal workers. So I'm willing to consider "anchor babies" an externality of the elevation of profit above all other concerns. In other words, I won't shed tears over the decision either way despite my belief that the current interpretation of "jurisdiction" is correct. For people with a stronger stake in the issue, though, the Arizona bill and the potential for this issue to reach the Supreme Court should be troubling.
HoosierPoli says:
I agree that the block of conservatives make it LIKELY that such a case would go that way, but I absolutely disagree that it's a plausible interpretation of the wording of the 14th Amendment. "Jurisdiction" is a VERY clear term; it means an area where a certain body has the power to enforce the law. Illegal immigrants, while illegal, are absolutely subject to US jurisdiction; THAT'S WHAT MAKES THEM ILLEGAL IN THE FIRST PLACE. They may be unindicted criminals, but so was Bernie Madoff; if he had a child, would that child not be a citizen just because he was currently flouting a law?
The problem here is, as you say, the case law leaves a LOT of wiggle room; they could uphold this law without changing precedent (which will please all the "originalists"). But it would be a shamefully dishonest interpretation of a constitutional amendment that is, for once, completely unambiguous and utterly clear in its meaning.
Arson says:
Not usually one to read blogs, but this was a great read- thanks!
S says:
I don't get it:
"All persons (A: born or naturalized in the United States,) and (B: subject to the jurisdiction thereof), are (C: citizens of the United States and of the State wherein they reside.)"
A states that you have to be born or naturalized in the US. B states that you have to be subject to the jurisdiction of the US. Why should the status of your parents matter at all? The situation seems rather that if B demands legal residence, then the only way to become a citizen is to acquire legal residence, which you cannot just by being there. Rather, you'd have to apply for a residence permit or something like it, and once you have it, would become a citizen, at which point you don't need it anymore. Sounds thoroughly stupid to me, so my guess is that legal residence is not required.
Misterben says:
Well, golly! I don't know about you, but the solution to all this tom-foolery seems pretty obvious to me! Let's just spend another few billion dollars building more fancy high-tech fences along the border. Maybe deploy a few of them unmanned aerial vehicles, too.
As with all our problems, I'm sure this one could best be solved by a gigantic handout to a defense contractor. Yes, sir.
Megan says:
The "problem" of immigration is caused by more than just lax enforcement. It's created by the paucity of decent jobs, educational opportunities and overall lack of development in our southern neighbors. If Mexico had an economy as strong as Canada's all of Latin America's immigrants would flock there.
bb in GA says:
While we may disagree on some of the subject issues, I have been increasingly distrurbed by State Legislatures passing blatantly unconstitutional laws. We may even disagree on which ones are which, but damn, there sure are enough of 'em for us to agree somewhere in the briar patch.
Their motive is that "We can work our magic for this limited time only. So folks, order before mid-nite tonight!" They know that the Judicial System grinds so slowly that it will be years, maybe the better part of a decade, before it winds its way to the SCOTUS (If it gets that far). And hells bells, the taxpayer is funding the attorney general's office so who cares?
The idealist part of me is pissed that those bastards (in the GA legislature in particular) are passing laws they know for sure are unconstitutional
//bb
bayou says:
I guess part of the issue is that almost all other Western countries have done away with jus soli which was an excellent idea during colonial and imperialist times but which isn't such a great idea now.
I don't know how I feel about this. I don't live in a border state, but I know good liberal people who do who are even tired of the issues that come with mass influxes of illegal immigrants.
It is unconstitutional for Arizona to deny citizenship, but it is constitutional for Arizona to deny issuing birth certificates. Ultimately this is another states' rights vs federal government issue.
Jason Harx says:
A fine argument maybe Ed, but how does this get to the Supreme Court? A state law intruding into federal jurisdiction? I don't see how even a member of that 4-vote block would accept this case.
truth=freedom says:
Turning @Hoosierpoli's argument around, doesn't the interpretation which says that a person born here to undocumented immigrant parents is denied citizenship on the basis of not being "subject to the jurisdiction [of the United States]", mean that they are not subject to any laws whatsoever? This seems risky, since if interpreted this way, instantly all such individuals have no status (legal or otherwise). An entire class of people who exist outside the law would be created by fiat. This would (paradoxically) require the revision of our laws in so many ways it makes my head explode.
Not to mention that further defining them simply puts them back in the category of being citizens….
Seems safer not to open that box, Pandora, and instead start enforcing the laws that say that hiring said undocumented immigrants is cause for punishment of the people who hire them. Do that and we likely won't need to do so much work to secure the border.
Mitch says:
Great article.
It left me wondering about another situation. Let's say that I'm an American citizen, married to a non-citizen (legally residing here), living in the US. We have a child. Under the interpretation that currently exists, the child is automatically an American citizen. If this were to change, how would it affect that type of situation?
I admit total ignorance on what the potential ramifications would be for that.
Jon says:
If you allow a slave's child born in America to be an American citizen, you lose a labor force you can exploit. This was an issue Southern Planters faced in the 1700s. They eventually came to the agreement that a child born to slaves was also a slave, even though he'd never been purchased.
If you allow an illegal immigrant's child to be a citizen, you cannot grow the labor force you wish to exploit. By keeping their status as illegal, they too can be exploited. It makes great sense from a business standpoint.
Liebchen says:
Megan has it right, but she forgot to mention the deleterious effects of NAFTA on the the Mexican economy and how it has driven so many people north.
Del says:
I don't understand why "permanent residence" doesn't imply legal residence. It seems like the exact opposite to me. If you could be deported at any moment, how can you consider yourself a permanent resident?
Ed says:
The child of a citizen and legal resident would automatically be a citizen through either jus soli or jus sanguinis. One parent is good enough for birthright citizenship in almost any circumstance (with some exceptions).
An illegal resident can still be a permanent resident, which is why they are counted in the Census.
party with tina says:
You don't earn legal residency status if you're illegally in country. For example you cannot get in-state tuition at public universities and community colleges. You are not taxed as a resident, because you have no residency status. The census is opaque in dealing with immigration status because the Federal Government has not been enforcing these laws.
mothra says:
By keeping their status as illegal, they too can be exploited. It makes great sense from a business standpoint.
Aaaaaaahhhhhhhh.
Robert says:
Whenever I see the term 'anchor baby', I think of Michelle Malkin.
So I try to avoid seeing that term whenever possible. I'm off to the liquor cabinet now. Thanks, Ed.
Crazy for Urban Planning says:
Sorry for a sad excuse of a comment, but I need to repeat Ed's last paragraph here because it is my thoughts and I have not been able to express them quite as well:
'In short, I will not be even slightly shocked if the current Court – with its four vote block of ultra-conservatives – were to offer a different interpretation of "jurisdiction" that excludes illegal residents. I am personally ambivalent about this issue. I don't lie awake at night worrying about "anchor babies" and how the imm'grunts are a-comin' to take our jobs and women. The problem of illegal immigration is caused entirely by lax enforcement (or non-enforcement) of immigration law, which in turn is a function of campaign contributions from businesses that thrive off illegal workers. So I'm willing to consider "anchor babies" an externality of the elevation of profit above all other concerns. In other words, I won't shed tears over the decision either way despite my belief that the current interpretation of "jurisdiction" is correct. For people with a stronger stake in the issue, though, the Arizona bill and the potential for this issue to reach the Supreme Court should be troubling."
Crazy for Urban Planning says:
P.S. Megan is also spot on – as a consequence of NAFTA, Mexico lost its agrarian origins and has been adrift for the last 20 years! I'm not a crazy right wing end globalization dude, but man it does have some "unanticipated consequences" that aren't really positive.
Patrick says:
If illegal immigrants are not interpreted as being under the jurisdiction of the US, that could have some interesting side-effects. Right now they'll still prosecute an illegal immigrant that commits crimes in the US, if it isn't minor, they won't immediately deport. You might get a situation where the consequences for an illegal immigrant who commits a crime will be less than the consequences for an actual citizen.