County Commissioner Bill James cited opinions among members of congress and some legal think tanks when he wrote me last week saying U.S.-born children of illegal immigrants should not be granted automatic citizenship.
He was responding to my story about U.S. Rep. Nathan Deal of Georgia and his efforts to change a federal policy that automatically grants citizenship to any baby born on U.S. soil. He and his supporters feel the current policy encourages illegal immigration and makes immigration enforcement more difficult.
James supports the effort, but questions whether the policy needs to be changed. He argues it was “never written to include everyone born in America.”
The debate is wrapped up in the 14th Amendment of the Constitution. Ratified in 1869, it was written as a result of slavery. States were saying African Americans were not citizens and therefore were not eligible for any rights. The amendment states:
“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 question at hand is whether the U.S.-born children of illegal immigrants should be considered "subject to the jurisdiction" of the U.S.
James argues they’re not.
The longstanding practice giving U.S.-born children of illegal immigrants birthright citizenship has never been directly reviewed by the Supreme Court.
James points out the children of diplomats are not subject to the jurisdiction of the U.S. Their children do not enjoy birthright citizenship. Their embassies, consulates, and residences are considered foreign soil. They can be removed at the will of the president.
But others disagree.
Miguel Manna, a former Charlotte immigration attorney who is now working in Raleigh, says illegal immigrants are subject to the jurisdiction of the U.S. Here is what he had to say:
“If an undocumented alien breaks a U.S. law or state law he/she is subject to prosecution. If an undocumented alien works in the U.S., despite not having permission to do so, they are still liable for taxes on their income. They also enjoy the benefits of our police protection, and constitutional safeguards, etc. The fact that they are in the U.S. illegally is somewhat irrelevant as most immigration violations are civil in nature.”
Manna said that when the 14th amendment was being drafted vigorous debate ensued about citizenship by birth in the U.S. Some Senators did not want the mere accident of being in the U.S. at birth to determine the great privilege. Others wanted a more expansive definition, to include diplomats and foreign dignitaries.
The reality is, Manna says, “nobody really knows what Congress intended when they added "and subject to the jurisdiction of thereof..."
Photos: Bill James, Library of Congress