Notes From Babel

Arizona Looks to End Birthright Citizenship

with one comment

Though I previously threw in my support for the basic idea underlying the DREAM Act, I support the proposal in the Arizona Senate Judiciary Committee to deny birthright citizenship.  In fact, my post on the DREAM Act should indicate, the two laws would be complementary:  Illegal immigrants should not be able to count on their unlawful entry and occupation in this country being rewarded with de facto (and arguably de jure) citizenship of their children; but neither those children or the communities who have invested in them should be so grievously harmed by alienating those children from their communities. 

Besides—and this is probably enough reason for me—there would be enormous value to airing out the meaning of the Fourteenth Amendment: 

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.

As my constitutional law professor John Eastman testified before the senate panel:

"Suppose a tourist from Great Britain was here visiting on a temporary tourist visa. He is subject to our jurisdiction in that he has to follow our laws while here, but he is not subject to the jurisdiction in broader sense that he could be drafted into our army or that he is allowed to vote while here," Eastman said. "There are two different meanings of subject to jurisdiction. This bill is simply trying to define what ‘subject to the jurisdiction’ means."

One of these days, I will get around to posting the results of my research on the Natural Born Citizenship and the Birthright Citizenship clauses.  The universal concern in western jurisprudence throughout the 18th and 19th centuries had to do with complete jurisdiction:  the nominal jurisdiction imposed on those merely passing through was not enough to impose sovereignty on a person or that person’s offspring.  This was the understanding of the “subject to the jurisdiction thereof” language in the Fourteenth Amendment as debated in Congress (though James Ho—like Eastman, a Justice Thomas clerk—disagrees). 


Written by Tim Kowal

February 7, 2011 at 11:22 pm

One Response

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  1. […] Frankly, I don’t know how to explain these claims other than an outright intent to mislead.  In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating. […]

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