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Jus soli: 

The Baited Trap of Birthright Citizenship

By Mike Gallagher

March 2017

Mike Gallagher is a prominent businessman specializing in the Health Care sector and a former Marine.

As a PCO he came up with the name for our ezine and helped shape its design. Thank you! -Editor

 

Jus soli, Latin for “right of soil,” refers to a person’s acquisition of citizenship by virtue of birthplace.  Today, the only developed countries granting “jus soli” are the United States and Canada.  All other developed nations in the world primarily use “jus sanguinis,” Latin for “right of blood” – i.e., heredity.[i] The adoption of birthright citizenship by the U.S. is due to our unique historical need to embrace former slaves recently freed at the culmination of the Civil War.  Their citizenship is acclaimed in the Civil Rights act of 1886 and Section 1 of the 14th amendment.

The history of the 14th Amendment: Birthright citizenship is memorialized in our constitution, Section 1 of the 14th amendment, which reads: “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.”[ii]

This Section was meant to address the now infamous Dred Scott decision of 1857.  Scott was an enslaved African American who sued for his freedom and that of his wife and their two daughters. The Supreme Court ruled that African Americans were not citizens of the United States.[iii]

In 1866 Congress addressed the Dred Scott decision by enacting the Civil Rights Act over the veto of Democratic President Andrew Johnson. Although Lincoln was a Republican, his Vice President, Andrew Johnson, was a Democrat who became President upon Lincoln’s assignation. The Act provided a definition of citizenship that remedied the Court’s misguided decision.

At the time of enactment it was feared that the Civil Rights Act might be repealed or limited, so Congress took the further step of including similar “citizenship” language in the 14th Amendment.

The Amendment was ratified by the States on July 9, 1868 and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. Congressional debate noted that the language would apply in a broader fashion to almost all children born in the United States – and indeed it did.

In 1898 the Supreme Court ruled that a child born in the United States to non-citizen parents was a citizen under the 14th amendment[iv] and in 1924 Congress extended citizenship to all Indians in the Indian Citizenship Act.[v]

Implications of birthright citizenship:  Despite our unique historical justification for its establishment, birthright citizenship might be considered at best as aberrant and at worse perverse in today’s world.

Which of us can honestly say that we would not be willing to come to the U.S. illegally in order to secure this birthright for our children? Assuming we had the wherewithal, would we avail ourselves of maternity tourism?[vi] [vii]

Perhaps consideration of an analogy, albeit a somewhat unfair exaggeration, is a worthwhile exercise? Let’s put it in terms of a hungry, poor, illegal husband and wife peering through the street window of a very good restaurant. Perhaps they’d see relatively well-dressed families, warm and cozy, laughing, and dining on a grand meal. What if the rules were set such that one could join the patrons by sneaking in? That your children and their future offspring, born after sneaking in, had a right to stay and could not be kicked out? That the only penalty that you and your wife faced was being shooed away?

Would you take the chance, would you sneak in?  I believe most of us would.  Tilting the odds further in favor of that action are the possibilities of future amnesty for having a clean record while inside, and the ability to slip back in if you were tossed out.

Conclusion: Although unintended, we appear to be luring aspiring immigrants into the U.S. in exchange for a better life and birthright citizenship for their future children. Illegal immigrant statistics would suggest that the lure is all but irresistible. Our border problem seems to be a combination of the unintended consequences of birthright citizenship, weak border and visa enforcement and a byzantine legal immigration process.

Perhaps it is time we join the other developed nations of the world and replace the notion of “jus soli” with “jus sanguinis.” We should also, at the same time, improve border and visa enforcement, and overhaul our legal immigration processes. Our goal should be to remove unintended incentives, and improve our aggregate immigration and border protection policies so that they are reasonable, humane, and just to both immigrant and citizen alike.


This issue in the local News:
Island Guardian, Jan 10th: “Illegal Immigrants Okay Here as Long as They Follow All Other Laws”
The Sounder, Mar 20th: “Border Patrol Says No Immigration Changes at This Time”
King 5 News, Mar 21: “WA Counties Called out for Denying ICE ‘detainer’ requests
The Journal, March 31: “Border Patrol Says No Immigration Changes at This Time
The Journal \, April 5: “County Sanctuary Status Could Affect Federal Funding

 

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ENDNOTES:

[i] Developed countries that do not recognize birthright citizenship: Andorra, Australia, Austria, Belgium, Bermuda, Cyprus, Czech Republic, Denmark, Faroe Islands, Finland, France, Germany, Greece, Holy See, Hong Kong, Iceland, Ireland, Israel, Italy, Japan, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, United Kingdom – Numbers USA, May 26, 2009.

[ii] U.S. Constitution.  The 14th amendment, section 1, goes on to address prohibition of the abridgement of a citizens privileges or immunities, deprivation of any persons life, liberty or pursuit or property without due process, and equal protection under the law.

[iii] Scott v Stanford, 60 U.S. (19 How.) 393, 404-407.

[iv] United States v Wong Kim Ark, 169 U.S. 849.

[v] 43 Stat. 253, ch. 233.

[vi]WSJ, Miriam Jordan, Nov. 4, 2015

[vii] World Post, Matt Sheehan, May 1, 2015