An Article by Bert B entitled “Citizen Children of Illegal Immigrants “ indicates that the 14th Amendment is the basis for the children of illegal immigrants becoming citizens. In the article and comments the suggestion is made that the only way we can change that is change the constitution with another amendment. I suppose that it probably is, for all practical purposes, but certainly not technically.
I think it likely that whatever was behind the 14th amendment, the effect of making citizens of thousands of children of illegal immigrants was not the intent. Do you know why the amendment was made? I don't know but I suspect the amendment was in response to one or more states attempts to make rules about whether former slaves were citizens of their states or not and in part to overturn the Dred Scott ruling, which basically said that black slaves were slaves and were not entitled to protection as humans under the law even when they and their owners resided in non-slave states.
It would look to me that it is an error in phrasing may be partly what is causing the problem. Rather than "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. " I suspect the intent would have been more clearly served by something more like "All persons born or naturalized as citizens of the United States, and subject to the jurisdiction thereof, are citizens of both the United States and of the state wherein they reside. " I mean the phrase “naturalized in” doesn't even make grammatical sense. I think that the interpretation given to the amendment that says that anyone born here is a citizen is really a silly interpretation by a politically motivated court.
Bert also suggests that we are stuck with this because 'it is the constitution and it must be enforced' or something to that effect. In one of his responses to comments on his article he says, " Do you also favor strict enforcement of the Fourteenth Amendment to the Constitution? Or do you choose to demand strict enforcement only of laws that you agree with?" Well since the 'rule' is arbitrarily not applied children of diplomatic residents it is clear that some sort of exception can be and has been considered. And I would suggest that a court that gave reasonable consideration to the idea might well find that the interpretation of the amendment to mean that the children of people who have no legal right to be here are automatically citizens is neither a reasonable nor an intended interpretation.
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Comments: 6
The real culprit in the current illegal immigration /citizenship kerfuffle is the Civil Rights Act of 1866. Be it enacted, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Three things to note: 1: This law was clearly about former slaves (specifically mentioning blackness and previous involuntary servitude as forbidden grounds for denying rights), and that is pretty much all, so it could very reasonably be argued that it has no application in modern day as there is no one alive to whom it was ever meant to apply.
and 2: it is simply a statute like any other and could easily be changed in Congress. It does not require any Constitutional amendment.
and 3: While it does not specify That all persons born in the United States to date and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; it certainly does not specify That all persons born in the United States now and forever and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; either, and since it is so clearly about freed slaves, it is very likely that the first, and not the second, was the intent.
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