My Fourteenth, Not Yours

Section. 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
-- Constitution of the United States , Amendment XIV

Talk is going around that we may want to de-naturalize some Mojado children. You have to go fairly deep in order to do so. And it's a bit surprising that those for whom this smithing of the Constitution was originally intended are among those chiefly interested in undercutting. I'm talking about African Americans. Consider Ted Hayes:

"The comparison is bogus. Rosa Parks was a U.S.-born citizen. This lady is a foreign national. If she wants to use Rosa Parks as an inspiration, that's fine. But do it in Mexico." — Ted Hayes, conservative Republican, on Elvira Arellano, an illegal immigrant holed up in a Chicago church to defy a deportation order after fraudulently using a Social Security card to further maintain her illegal entry status at work and who compares herself to the civil rights icon.

In case you haven't heard, out here in California the Crips and Bloods don't fight each other so much. Now it's the black gangs against the Mexican gangs. The hostility in some neighborhoods is palpable, and not just gang neighborhoods. Just last week over at the South Bay Galleria, I heard some black teens muttering about how much they hate Mexicans. If they have family or extended family somewhere in the California Penal System, there can be little doubt that is not merely sentiment.

The Fourteenth Amendment was essentially created to grandfather African slaves into the post war America as citizens. So as I said, the roots of these ideas are pretty deep, however there very well may be a legal hole as described by this extended Wikipedia entry.. nota bene:

Citizenship and the children of immigrants

It has been suggested that this article or section be merged into Anchor baby. (Discuss)

The provisions in Section 1 ensure that children born on United States soil, with a very small number of exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli, or "right of the territory"— does not exist in most of Western Europe or the Middle East, although it is part of English common law and is common in the Americas.

The phrase "and subject to the jurisdiction thereof" indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. Two Supreme Court precedents were set by the cases of Elk v. Wilkins 112 U.S. 94 (1884) and United States v. Wong Kim Ark 169 U.S. 649 (1898). Elk v. Wilkins established that Indian tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisidiction of the United States. Children born to these Indian tribes therefore did not qualify for automatic citizenship under the Fourteenth Amendment. Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier Act of Congress.

In Wong Kim Ark the Court found that a man, born within the United States to Chinese citizens who were lawfully residing there, was a citizen of the United States.

Under these two rulings, the following persons born in the United States are not "subject to the jurisdiction [of the United States]", and thus do not qualify for automatic citizenship under the Fourteenth Amendment:

• Children born to foreign diplomats
• Children born to enemy forces in hostile occupation of the United States
• Children born to Native Americans who are members of tribes not taxed (these were later given full citizenship by the Indian Citizenship Act of 1924)

The following persons born in the United States are explicitly citizens:

• Children born to US citizens
• Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws.

Wong Kim Ark did not explicitly decide whether U.S.-born children of illegal immigrants are "subject to the jurisdiction of the United States" (it was not necessary to answer this question since Wong Kim Ark's parents were legally present in the United States at the time of his birth). However, the Supreme Court's later ruling in Plyler v. Doe stated that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that

no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful [1].

This implies that the U.S.-born children of illegal immigrants qualify for citizenship under the Fourteenth Amendment.

Some legislators, reacting to illegal immigration, have proposed that this be changed, either through legislation or a constitutional amendment. The proposed changes are usually one of the following:

• The child should have at least one parent who is a U.S. citizen.
• The child should have at least one parent who is a U.S. citizen or permanent resident
• The child should have at least one parent who is lawfully present in the United States.

For example, Representative Nathan Deal, Republican of Georgia, introduced legislation in 2005 to assert that U.S.-born children are only "subject to the jurisdiction of the United States" (and therefore eligible for citizenship under the Fourteenth Amendment) if at least one parent is a U.S. citizen or permanent resident. [2]. Similarly, Representative Ron Paul of Texas has introduced a constitutional amendment that would explicitly deny automatic citizenship to U.S.-born children unless at least one parent is a citizen or permanent resident [3]. Neither of these measures has come to a vote. Even if Rep. Deal's legislation were passed by Congress, it would likely be struck down by the courts based on the precedent established in U.S. v. Wong Kim Ark, which allows for the US born children of lawful visitors to be citizens as well. The issue remains controversial, reflecting both tensions about immigration and disputes about the appropriate balance of power between the courts and the Congress.