Now that Congress is done with health care, it may take up the question of illegal immigration. One of the issues it will face is "birthright citizenship," which grants automatic citizenship to anyone born on American soil, even if their parents are here illegally.
Conservative commentator George Will writes in Sunday's The Washington Post that a simple fix is out there. All Congress has to do is reinterpret the 14th Amendment, bringing it "into conformity with what the authors of its text intended, and with common sense, thereby removing an incentive for illegal immigration."
The Amendment simply 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."
Will quotes University of Texas law professor Lino Graglia, who tries to explain "subject to the jurisdition thereof:" Will writes:
What was this intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.
If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.
Will goes on to point out that the Civil Rights Act of 1866 from which the 14th Amendment citizenship clause is derived specifically excludes American Indians from citizenship, even if they are born here. That's because they owe their allegiance to their tribes, not the U.S. That restriction applies to their children as well. Even today, the children of foreign diplomats who are born here are not citizens because they are subject to another jurisdiction.
Will says that logic should apply to children are illegal immigrants as well:
Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent." Graglia says this decision "seemed to establish" that U.S. citizenship is "a consensual relation, requiring the consent of the United States." So: "This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal."
Congress has heard testimony estimating that more than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally. Graglia seems to establish that there is no constitutional impediment to Congress ending the granting of birthright citizenship to those whose presence here is "not only without the government's consent but in violation of its law."