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.

Doug Mataconis · · 37 comments

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.