Rand Paul, David Vitter Take Aim At Birthright Citizenship

Two Senators are proposing a Constitutional Amendment to redefine what it means to be an American citizen.

Rand Paul and David Vitter have introduced a resolution in the Senate to put an end to birthright citizenship:

Rand Paul (Ky.) and David Vitter (La.) are introducing a resolution this week that would amend the Constitution so that a person born in the United States could only become an American citizen if one or more of his or her parents is an legal citizen, legal immigrant, or member of the armed forces, according to a joint press release Thursday.

Vitter said the legislation would help reduce illegal immigration.

“For too long, our nation has seen an influx of illegal aliens entering our country at an escalating rate, and chain migration is a major contributor to this rapid increase – which is only compounded when the children of illegal aliens born in the U.S. are granted automatic citizenship,” Vitter said. “Closing this loophole will not prevent them from becoming citizens, but will ensure that they have to go through the same process as anyone else who wants to become an American citizen.”

Paul said the legislation enforces the current immigration rules.

“Citizenship is a privilege, and only those who respect our immigration laws should be allowed to enjoy its benefits,” Paul said. “This legislation makes it necessary that everyone follow the rules, and goes through same process to become a U.S. citizen.”

The resolution is part of a larger bundle of immigration bills that Vitter introduced at the beginning of the 112th Congress.

It’s unclear what exactly Paul and Vitter are trying to do here since the text of their resolution is not yet available on line, but let’s assume that this is an actual attempt to amend the Constitution. If that’s the case then this is going nowhere simply because of how hard it is to amend the Constitution, and this is nothing more than a cynical attempt to placate the nativist base of the Tea Party.

On the substance, though, it constitutes nothing less than a complete evisceration of the 14th Amendment.  In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court issue it’s one and only ruling on the meaning of the 14th Amendment’s citizenship clause:

[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

(…)

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

This interpretation is supported by statements made by at least one of the framers of the 14th Amendment:

The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”

In other words, the children born in the United States are citizens regardless of the citizenship status of their parents, the one exception being children of diplomats. As I noted last year, changing this rule would change what it means to be “American”:

Citizenship in America is a simple concept. If you’re born here, you’re own of us. Get rid of that, and we will be living in a country where, to one extent or another, citizenship will depend not on birth, but on bloodlines. That’s the law in Germany and the result is that there are entire populations of people who have come to live there, who have integrated themselves into German society, and who have no connection left with their former homelands, but, because they don’t have sufficient “German blood,” they aren’t German citizens. The dangers of such a stateless class of non-citizens should be readily apparent.

The system we have right now isn’t perfect, but its better than the alternative, there’s no need to change it.

FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. EddieInCA says:

    The GOP outreach to Minorities continues at it’s accelerated pace.

    And by outreach I mean “driving them away at a record pace”.

  2. James Joyner says:

    This is a non-starter since, as you say, there’s no way this has the ability to go through the rigorous amendment process.

    Philosophically, though, I’ve got no objection to a narrow amendment that grants natural citizenship to those born here to legal residents. That is, a narrow exclusion so that the infants of illegal immigrants aren’t citizens wouldn’t strike me as a radical change in the social covenant.

  3. Zelsdorf Ragshaft III says:

    Many times we (those who do not echo the lefts thoughts) discuss unintended consequences. Are you aware of why the 14th Amendment was written and passed? It surely was not to allow those who came to this country illegally to get their children citizenship. That amendment would never have passed had this been foreseen. BS like the first commenter wrote is why the left just does not understand what this is all about. But that is OK. America is tired of this BS and if you failed to learn from the last election, you surely will understand the next one.

  4. sam says:

    A nonstarter solution to a nonproblem.

  5. An Interested Party says:

    “America is tired of this BS and if you failed to learn from the last election, you surely will understand the next one.”

    Oh yes, of course, because the issue of birthright citizenship will propel the GOP to gain the presidency and control of both chambers of Congress…of course, such a result would still make this a non-starter…as far as Eddie’s comments being “BS”…if conservatives really think the way to expand their tent to include Hispanics is to be pushing things like this, please, feel free to do so…

  6. Ernieyeball says:

    ZR3 sez: “That amendment would never have passed had this been foreseen.”
    You betcha!
    Lets use this argument as we reconsider Amendment II for instance.
    There is no way the FF could have foreseen the killing power of semi automatic weapons. Surely they would have not approved of the unrestricted possession of these arms. Oh wait…didn’t they say something about “A well regulated Militia…’?

  7. EddieInCA says:

    Zelsdorf –

    I am well aware of the reasons behind the 14th Amendement. The question is… Do you?

    “SUPREME COURT OF THE UNITED STATES – 169 U.S. 649
    United States v. Wong Kim Ark”

    “A child born in the United States, of parents of Mexican* descent, who, at the time of his birth, are subjects of the country of Mexico**, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the country of Mexico, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”

    *replaces “Chinese” in the original decision

    **replaces “Emperor of China” in the original decision.

    So… I ask you, Mr. Zeldorf, how can you claim that we don’t know what this is about? The Supreme Court, has REPEATEDLY, opined decisions which are directly in rebuttal to your point of view, and which support my point of view.

    How do you reconcile that FACT, with your belief?

  8. EddieInCA says:
  9. Ernieyeball says:

    Amendment XXVIII: (Proposed) Section 1. All babies born to persons who are illegal inhabitants of the USA shall be deemed to have entered the country Illegally and deported at once.

    Is that narrow enough Mr. Joyner?
    Or maybe we should not visit the sins of the mother on the child.

  10. James Joyner says:

    @Ernie: That seems reasonable enough. Not sure why benefits ought be conferred on the basis of illegal activity. No, the children didn’t commit any wrongdoing. But it’s not clear why they ought be automatic citizens.

    Obviously, it gets more difficult when the illegality goes unpunished for years.

  11. Ernieyeball says:

    I guess the only reason they ought to be automatic citizens is because The Constitution says they are. Pardon me for being a strict constructionist.

  12. sam says:

    “I guess the only reason they ought to be automatic citizens is because The Constitution says they are.”

    The argument is that they don’t deserve to be. I’m not impressed with that argument. It strikes me as visiting the sins of the parents on the children.

  13. James Joyner says:

    @Ernie: Nobody’s arguing about what the Constitution says but rather whether what it says should be changed by amendment.

    @sam: I don’t think it’s strictly even about whether the kids themselves “deserve” citizenship but whether the parents ought to get an anchor to the USA by virtue of violating our laws.

    Again, it’s irrelevant because the Constitution is almost impossible to change and we ain’t changing it over this.

  14. Ernieyeball says:

    Maybe I misstated my point.
    It is clear to me that “All persons born…in the United States…are citizens of the United States…” because that is what Amendment XIV says.
    If being born in the US means you get the benefits of United States citizenship because you are a citizen per the Constitution then that is what you get.
    The Constitution also states that “Congress shall have power…To establish an uniform Rule of Naturalization.”
    Maybe Senators Paul and Vitter could work to reform those rules instead of pandering to their constituencies.

  15. An Interested Party says:

    “Maybe Senators Paul and Vitter could work to reform those rules instead of pandering to their constituencies.”

    You obviously expect far too much of these two…

  16. Loviatar says:

    James is playing his designated the part in today’s Republican party.

    James and others like him act as the faux-reasonable/apologist face to the crazies at the heart of the current Republican party. They mainline the racist, homophobic, class warfare of the Republican party with talk of reasonable compromises or narrow amendments. They don’t rant and rave at rallies or make overtly confrontational statements on TV or print, but when you take a look at their actions and you are calculate out the results of those actions are they any better than the Beck, Limbaugh or Tancredos of the world.

    The way the act works is: the crazies suggest something way over the top that the general populace won’t accept, i.e. an end to birthright citizenship.

    Step 1: Suggest something similar to the original idea that differs in no substantial way. Use language like narrow, compromise and philosophical.. The end result should be the same, i.e. an amendment that ends birthright citizenship and punishes the child for the sins of the parents.

    Step 2: Build a way over-the-top strawman argument that no one has suggested then use your idea as a response to that argument. i.e. “whether the parents ought to get an anchor to the USA by virtue of violating our laws.”

    Step 3: Downplay the fact you’ve mainline the argument by suggesting its either a philosophical suggestion or it’s irrelevant because the Constitution is almost impossible to change and we ain’t changing it over this.

    Final Step: The crazies now point and say “well if reasonable Republican James Joyner says… then its not racist, homophobic, class warfare”.

    Bonus Step: All of this will work even better if you get a Democrat (Lieberman) to play James’ part.

    As I’ve said in another post today: this is what the Republican party has denigrated to; the crazies and the people who defend them, sad isn’t it.

  17. sam says:

    @James

    @sam: I don’t think it’s strictly even about whether the kids themselves “deserve” citizenship but whether the parents ought to get an anchor to the USA by virtue of violating our laws.

    C’mon, James, you know how long it would take for such a child to have any effect on its parents’ citizenship applications. A looooong time.

  18. Ernieyeball says:

    IP:
    Not really. I just said that in case they were reading OTB and saw my post.
    They would then know that not everyone thinks their screwy ideas are worthwhile.
    Of course I do not live in KY or LA so they don’t need to care what I think.

  19. tom p says:

    “@Ernie: That seems reasonable enough. Not sure why benefits ought be conferred on the basis of illegal activity. No, the children didn’t commit any wrongdoing. But it’s not clear why they ought be automatic citizens.”

    JJ, you are not sure why? Have you read the constitution? It is pretty clear on this point: They are automatic citizens because the constitution says they are. You and ZRIII can take all your rationalizations and put them where the sun don’t shine

    This is not even hard.

  20. Trumwill says:

    Tom, there is a difference between what the Constitution says and what it should be amended to say. Your logic is like saying, circa 1930, that alcohol should be illegal because The Constitution says it is. The discussion is whether or not The Constitution should be changed. Joyner has said so at least a couple times.

    (I say this as someone that would oppose any Constitutional Amendment that affected Birthright Citizenship.)

  21. Trumwill says:

    Obviously, it gets more difficult when the illegality goes unpunished for years.

    That’s the rub, though, isn’t it? To prevent this from happening, you would need some pretty draconian procedures to get them out in a timely fashion. There are reasons that we haven’t rounded up and sent home the illegal immigrants. To do so, we would need to racially profile in a pretty serious way or we would need to inconvenience everyone to a degree that they would not put up with.

  22. ponce says:

    Rand Paul sure is living up to his hype as the craziest of the incoming Republican Freshmen.

    All I think of when I see Vitter’s name is hookers and diapers…

  23. That is, a narrow exclusion so that the infants of illegal immigrants aren’t citizens wouldn’t strike me as a radical change in the social covenant.

    Unless you’ve painstakenly researched your entire family tree back to the point where your ancestors first came to the US, how do you prove you’re a citizen? You’re not a citizen unless you can show your parents were here legally. But you can’t prove they were here legally unless your grandparents were here legally. But you can’t prove they were here legally unless your great grandparents were here legally.

  24. Trumwill says:

    Stormy, almost certainly any statutory change would only apply going forward. So you would only need to go back to the date of enactment. Going forward there could probably be a checkbox for citizenship. Your parents produce their birth certificates, and if they were born before x/x/xxxx you are a citizen, and if they were born after that date, you look at their citizenship box.

  25. Katie in Califiornia says:

    While Paul and Vitter claim that this is about the children of illegal immigrants, it would also affect many people who are born in America to absolutely-legally-here parents, including the children of graduate students and the children of workers.

    Our science and technology university programs have many students from around the world. Their children would be stripped of citizenship, because Paul and Vitter’s proposal doesn’t cover non-permanent residents.

    Even if the bill isn’t retroactive, every American whose parents weren’t permanent residents when they were born will know that sitting senators think that they aren’t really Americans.

  26. Ernieyeball says:

    Philosophically I would say that the illegal parents of our newborn citizens are not really expecting United States citizenship for themselves anytime soon, if ever. It’s a good bet they have the best interest of their kids in mind. This is just my personal theory.

  27. Trumwill says:

    While Paul and Vitter claim that this is about the children of illegal immigrants, it would also affect many people who are born in America to absolutely-legally-here parents, including the children of graduate students and the children of workers.

    I’m not sure how big of a deal this is. If we did do away with birthright citizenship (against my wishes), I wouldn’t really oppose extending the same rules to those whose parents are here for a (comparatively) short time and then go home. My former boss was Japanese. His second child was born here and gets the citizenship that his first child lacked. Nothing against the boss, or his son, but the children of illegal immigrants who are raised here will be more American than the kid will be.

    The biggest problem I have with doing away with birthright citizenship is the prospect of children being raised here, with little or no contact with their homeland, suddenly being deported when they’re 14 into a country they’ve never known. Or, if they’re not caught, having children several years later who will also be solely citizens of a country that neither they nor their parents have ever been to. This could go on for generations.

    None of this really applies to the children of graduate students, seasonal workers, or holders of temporary visas.

  28. Katie in Califiornia says:

    Trumwell,
    Graduate school can last for years, and then those PhDs may continue in research or teaching here: of course they’d then become legal immigrants, but their children would, at least temporarily, be in limbo. [Yes, they could go back home, but I think overall we want these science and technology researchers to stay and found companies here]

    More importantly than the numbers is simply that these senators claim to be doing this because of “illegals,” but they’re happy to throw away the citizenship of fully-legals too. Any child of “legally here when they were born” parents has got to be worried, now.

  29. anjin-san says:

    The GOP would not be the GOP without someone to fear and loathe. (preferably with different color skin)

  30. superdestroyer says:

    For all of those who argue that any demand for proving legal residence need to explain who most of the rest of world does it. If one is born in England to illegal aliens one is not automatically a citizen.

    Why can’t the U.S. manage to do what the rest of the world does.

    Also, the constitution says that those born in the U.S need to be under the jurisdiction of the U.S. Being here illegally could mean that the parents and their children are not under the jurisdiction of the U.S since they did not enter legally but are under the jurisdiction of the country where they are citizens.

  31. PJ says:

    @superdestroyer:
    “Why can’t the U.S. manage to do what the rest of the world does.”

    Remove or cripple the second amendment? Why should the US do that? Just because almost all other countries won’t give their citizens that right doesn’t mean the US should rescind that right.

  32. sam says:

    “Also, the constitution says that those born in the U.S need to be under the jurisdiction of the U.S.”

    That issue was settled in Won Kim Ark:

    The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

  33. An Interested Party says:

    “Why can’t the U.S. manage to do what the rest of the world does.”

    Oh really? Is this the new standard? When do we get universal health care…

  34. wr says:

    “Being here illegally could mean that the parents and their children are not under the jurisdiction of the U.S since they did not enter legally but are under the jurisdiction of the country where they are citizens.”

    Yes, it certainly could mean that. It could mean that red M&Ms violate the constitution. It could mean anything, as long as anonymous posters on the internet and right-wing cranks had the ability to assign meaning based on their personal ideologies.

    But that’s not how the world — and the US government — works. Whatever it could mean doesnt matter. The only thing that does is what it actually does mean. And that ain’t it.

  35. mantis says:

    Nothing against the boss, or his son, but the children of illegal immigrants who are raised here will be more American than the kid will be.

    And the child of American citizens born abroad (or born here and moved abroad shortly thereafter) who doesn’t set foot inside his/her home country (again) for the first 18 years of his/her life would be far less American, by that standard, than either of those children of non-citizens.

    Basically, that standard of “American-ness” is very much lacking.

  36. Trumwill says:

    Mantis, I am not sure that’s the case. Those children would likely have American parents, which makes a difference. They would probably get as much exposure or more exposure to American culture and values than my boss’s kid got in his first few years. Beyond which, having your children being American citizens is one of the perks of being an American, so I am inclined to keep that one even if we lose birthright citizenship.

  37. Cranky Yankee says:

    I can only hope that if this passes that they make the bill retroactive-then we can send these morons packing. The reality is that almost ALL of the Republican and Tea Party whiners have an ancestor who was an “anchor baby” including most, if not all, of our Founding Fathers.