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Congress Takes On The Constitutionality Of Birthright Citizenship

American citizenship as a birthright has recently become a prominent issue in the ongoing immigration debate, and congressional leaders sought answers during a hearing Wednesday.

The House Judiciary Committee called upon legal experts to discuss whether the U.S. Constitution actually allows children born in the United States to be citizens, even if their parents are illegal immigrants. Under the Citizenship Clause, which falls under the Fourteenth Amendment, people born within the country or its territories are automatically granted citizenship

“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,” the Citizenship Clause of the Constitution states.

Despite this clear language, many have argued the law has resulted in adverse consequences encouraging immigrants to migrate here illegally so that their children can be considered citizens (dubbed at one time ‘anchor babies’). For Lino A. Graglia, a chair at the University of Texas at Austin School of Law, the Constitution is being misinterpreted.

“It should be interpreted to mean what it was intended to mean by those who adopted it,” Graglia declared before the committee. “They could not have meant to grant birthright citizenship to children of illegal aliens because, for one thing, there were no illegal aliens in 1868, because there were no restrictions on immigration.”

“The purpose of the Fourteenth Amendment was to constitutionalize the 1866 Civil rights Act for which the Citizenship Clause of the Fourteenth Amendment derived.”

Dr. John C. Eastman, the founder of The Claremont Institute’s Center for Constitutional Jurisprudence, agreed noting that congress still had the power to determine citizenship under the Constitution.

“Congress remains free to offer citizenship more broadly than that, of course, pursuant to its plenary power over naturalization,” Eastman argued. “Current law merely parrots the ‘birth’ and ‘subject to the jurisdiction’ requirements that are the floor for automatic citizenship already set by the Constitution.”

Richard Cohen, the president of the Southern Poverty Law Center, however argued birthright citizenship is protected and that later laws and court cases confirm it.

“On May 29, 1866, amid debate in the Senate, Senator Jacob Howard of Michigan introduced an amendment clarifying that birthright citizenship would apply to everyone born within the United States with the exception of the children of foreign diplomats,” Cohen said. “Howard said that his amendment was ‘simply declaratory of what I regard as the law of the land already.”

“Just thirty years later, the Supreme Court interpreted the Citizenship Clause in a case involving
the son of Chinese immigrants,” he continued. “Wong Kim Ark was born in San Francisco and had spent his entire life in the United States.”

“When he was about 17, he traveled to China for a visit before returning home to San Francisco. When he returned to the United States after a second visit four years later, he was denied entry on the basis that he was allegedly not a citizen,” he went onto say. “Even though Congress had prohibited individuals of Chinese descent from becoming citizens, the Supreme Court held that the Fourteenth Amendment granted citizenship to all who were born in this country.”

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