Most states in the United States are considering bills intended to limit birthright citizenship. Arizona is, not surprisingly, leading the way.
Supporters of such bills contend that illegal immigrants are having children here and these children become citizens. This then, it is claimed, creates a burden on the taxpayers as they have to pay for the services used by the illegal parents and their citizen children.
While this has a certain appeal, such proposed laws seem to be in clear violation of the constitution, specifically the 14th amendment. The relevant part of the 14th amendment 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.”
This seems to be a clear cut matter with no room for meaningful debate. As such, many legal experts believe that any bills of this sort that get passed into law will be struck down as unconstitutional. That would seem to leave the birthright folks with one main recourse-changing the constitution via a repeal or another amendment to negate that part of the 14th amendment.
Then again, it might be possible to pass laws that effectively nullify the 14th amendment for illegal immigrants while also being deemed constitution. To see that this is possible, consider the second amendment.
The second amendment reads: “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
On the face of it, this seems to clearly state that the right to keep and bear arms shall not be infringed. This would certainly seem to entail that individual citizens have the right to posses (own) arms and that this shall not be infringed. However, there are numerous laws that infringe the right to keep and bear arms. These are justified in various ways, such as noting the alleged ambiguity as to whether the right is an individual right or a collective right. However, what it is important is that the right certainly seems to have been infringed or at least interpreted in a way that the infringements are not legally regarded as actually being infringements.
Presumably the 14th amendment could be infringed upon via similar methods. For example, it does seem that the wording does allow for some interpretation that would make certain laws constitutionally viable.
First, consider the phrase “and subject to the jurisdiction thereof.” It could be argued that someone who is within a state illegally is not thus subject to the jurisdiction of the United States, except insofar as being subject to the laws that specify that the person is present illegally and thus has no right to be within the jurisdiction of the United States. On these ground, the person would not be subject to the laws in the sense of being a subject of said laws. Rather, the person would be in violation of the laws. As such, children born to illegal immigrants would not fall under the 14th amendment and would thus not become citizens by this method.
Second, consider the phrase “are citizens of the United States and of the State wherein they reside.” Residing within a state can be taken as being a resident of a state. As Rahm Emanuel recently found out, what counts as being a resident can be a matter of some contention. However, at a minimum being a resident of state would at least require that the person has a legal right to be present in the state. Beyond that, of course, are various other requirements that vary from state to state. As such, to be a citizen of the state wherein they reside would require that a person be a legal resident (as defined by the state). This would certainly seem to open the door to states defining resident status in a way that easily excludes illegal immigrants and their children from being residents.
While these seem to be but word games, that is a legitimate game in the realm of law (not to mention philosophy). However, I do not expect any of the laws to pass constitutional muster nor to stand up to the inevitable challenges.
