We Shouldn’t Need A Constitutional Amendment To End Birthright Citizenship

03 Aug, 2010 by John Hawkins

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American citizenship is a very precious thing and it should be treated that way. That’s part of the reason illegal immigration has been such a contentious issue. It’s also why anchor babies have been in the news of late. Simply put, a child of two illegal immigrants that’s born on American soil or the child of someone from a foreign country who flies here for the express purpose of having a child on American soil, shouldn’t be given American citizenship.

Happily, Republicans in the Senate seem to have also reached that same conclusion:

Senate Minority Leader Mitch McConnell (R-Ky.) told The Hill on Monday that Congress “ought to take a look at” changing the 14th Amendment, which gives the children of illegal immigrants a right to U.S. citizenship.

McConnell’s statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.).

In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the country’s immigration problem.

McConnell stopped short of echoing Graham’s call for revamping the amendment.

“I think we ought to take a look at it – hold hearings, listen to the experts on it,” McConnell said. “I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with.”

During an interview on CBS’s “Face the Nation” on Sunday, Kyl said, “There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. … And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”

Put simply: I don’t think it requires a change to the 14th Amendment to end birthright citizenship for children who are born to two non-American parents. I say that for the same reason that the children of foreign diplomats who are born in the United States aren’t given American citizenship. Here’s the relevant passage:

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.

I’d argue that illegals and people engaging in birth tourism are “subject to the jurisdiction thereof” of their home nations and therefore, their children are ineligible to achieve birthright citizenship in the United States.

While I would certainly support a constitutional amendment that does that, I think it makes more sense to pass a law ending birthright citizenship for children born of two non-American citizens and then see what happens when it’s tested at the Supreme Court. If the SCOTUS gives it the thumbs up, then the job’s done. If they don’t, then we can push for a constitutional amendment, which will be much tougher, because regrettably, we have gotten far too reluctant to amend the Constitution in recent years.