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Citizenship

Copyright © 2011, 2013 by David E. Ross

No, this is not about patriotism, which I address in a different commentary. This is about who is indeed a citizen of the United States by birth.

Born in the U.S.A.

Song written and performed by Bruce Springsteen

The "Birther" Movement

The Constitution requires

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

U.S. Constitution, Article II, Section 1, 5th paragraph

During the 2008 presidential election, a movement began in the U.S. that questions the legitimacy of Barack Obama's qualifications to be President. The "birthers" claim that Obama was not born in the United States. Instead, they assert he was born variously in Kenya (where his father was indeed born) or in Indonesia (where Obama lived during part of his childhood).

This movement rejects newspaper archives reporting Obama's birth in Hawai'i. They even reject certificates of live birth issued by the state of Hawai'i regarding Obama. They insist on seeing a long-form birth certificate that lists the doctor who delivered baby Barack and Barack's parents. Under Hawai'ian privacy laws, however, such a long-form certificate cannot be made available.

To further the controversy, some other states are considering laws to require presentation of a candidate's long-form birth certificate before a candidate for President can appear on that state's ballot. No one seems to know how to address the situation of those states that do not have any kind of long-form birth certificate. Is it possible that the birthers would prohibit individuals born in such states from ever being a candidate for President?

The extreme political nature of the birther movement is evidenced by the fact that few questioned the qualifications of John McCain to be President during the 2008 election. McCain was born in a place that is no longer part of the United States. He was born in the Panama Canal Zone, which is now part of the nation of Panama. However, Democrats and Republicans all agreed that McCain was indeed a U.S. citizen by birth.

In any case, a child born of a mother who is a United State citizen is entitled to be declared a natural-born citizen. My granddaughter — born in Canada — will soon have the status as a citizen by birth because her mother (my daughter) was born in the United States. Obama's mother was born in the United States, and he thus has the right to be treated as a natural-born citizen of the United States.

Obviously, the birther movement is not about doing what is right or even what is legal. It is all about politics and possibly about racial prejudice. To disprove this assertion, the movement should expand upon its quest. Not only should candidates for President prove they are natural-born citizens, but also all candidates for Congress should be required to prove that they are both U.S. citizens and legal residents of the jurisdictions they wish to represent. Indeed, this might even be expanded to include candidates for state and local offices.

Citizenship as a Birthright

The Constitution declares

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.

U.S. Constitution, Amendment 14, Section 1

Another political movement wants to deny citizenship to children born in the United States if their parents were illegal immigrants. Yes, illegal immigrants broke the law when they entered the U.S. The morality of punishing the children of law-breakers, however, is highly questionable.

Two theories are at work in this political movement:

• Since the parents have eluded immigration officers, they have escaped the jurisdiction of the U.S. This is silly. They are still within the borders of the nation and are thus within the nation's jurisdiction. The fact that a birth certificate for the newborn child is recorded with a government agency clearly places the child under the jurisdiction of the government.
• The movement claims that such children are "anchor babies", intended to provide justification for their parents to remain in the U.S. This is contrary to reality. Very few pregnant women enter the U.S. illegally just before going into labor. In any case, such "anchor babies" do not prevent the deportation of their parents. Yes, these children can sponsor their parents to become legal immigrants but only after they become adults, 18 years later.

Without amending the Constitution, this movement is unlikely to succeed in denying the birthright of citizenship to children of illegal immigrants. In 1898, the U.S. Supreme Court ruled that — under the 14th Amendment — a child born in the U.S. automatically became a citizen even though his parents were not eligible to ever become citizens under a law existing at that time, a law that prohibited the child's Chinese parents from becoming naturalized citizens. Further, the same Supreme Court decision indicated that "subject to the jurisdiction thereof" refers to children born in the U.S. whose parents are "employed in any diplomatic or official capacity" by other nations and are thus exempt by treaty from the jurisdiction of the United States. In the meantime, attempts by states to issue non-citizen or other substandard birth certificates to children of illegal immigrants will run afoul of the second sentence of the 14th Amendment.

There are nations that will not recognize children born in the U.S. as their own citizens even if the parents are citizens of those nations. Consider the legal situation with Canada. A Canadian couple — born and raised in Canada — have a child born not in Canada but in some other nation. That child is considered to be a Canadian citizen. When the child grows up, however, his or her child also born not in Canada is not recognized as a Canadian citizen. This is not a hypothetical situation; the Canadian law on this has been unsuccessfully challenged twice in Canadian courts. The U.S. already has a very similar law.

If a child's parents are in the U.S. illegally, the child is denied U.S. citizenship because of his or her parentage, and the child is denied citizenship of his or her parents' nation because the birth was in the U.S. and not that other nation, of what nation is that child a citizen? If that child is to be deported as a non-citizen alien, to what nation would he or she be sent? Those opposed to birthright citizenship for children of illegal immigrants risk creating stateless individuals, persons who are not citizens of any nation.

7 February 2011
Updated 11 August 2013

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