Why the 14th Amendment should be reinterpreted

I pulled this op-ed from the Sacramento Bee. It examines the debate whether Congress should reinterpret the 14th Amendment, specifically the clause that states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …"  Congress is currently debating this issue which is relevant to immigration reform and national security.

By Jan C. Ting
Jan C. Ting is professor of law at Temple University Beasley School of Law, where he teaches citizenship, immigration and refugee law.

According to the Pew Hispanic Center, 8 percent of the babies born in the United States, one out of every 12, have at least one parent whose presence in the United States is illegal. The Washington Post and other news sources have reported on widespread birthright tourism, by which pregnant tourists come here to give birth in order to provide U.S. citizenship to the child. The current interpretation of the 14th Amendment to the U.S. Constitution allows all such children, whether born to illegal aliens or to temporary tourists, automatic U.S. citizenship at birth.

Elected officials have begun to question whether that interpretation of the 14th Amendment is correct, and whether it can be changed. What the 14th Amendment says is, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …"

The 14th Amendment does not say or mean that all persons born here are citizens. There are many examples of persons born here who are not automatically citizens under the 14th Amendment. And in every such case the denial of birthright citizenship is because of the status of the parents.

For example, the children of foreign diplomats, even if born in U.S. hospitals, are not considered U.S. citizens because they are not subject to the jurisdiction thereof. Children born on U.S. soil to alien enemies in hostile occupation are not citizens for the same reason. The Japanese military occupied two of the Aleutian Islands in Alaska during World War II. A Japanese child born there during hostile occupation would not be a U.S. citizen.

Children born in the United States to Russian spies recently accompanied their parents back to Russia when they were exchanged for Russian prisoners. Are those children entitled to return as U.S. citizens after graduating from Russian spy school? Shouldn't they, too, be regarded as born to alien enemies in hostile occupation?

For many years after the adoption of the 14th Amendment, children born to American Indian tribes were not considered U.S. citizens because of their allegiance to the sovereign tribes. The fact that the exception for children born to American Indian tribes was later overturned by congressional enactment suggests a role for Congress in determining the proper interpretation and application of the 14th Amendment.

If Congress has the power through statutory enactment to interpret who is and who is not subject to the jurisdiction of the United States under the 14th Amendment, what interpretation should it adopt? Should it legislate that children born here to illegal aliens who are citizens of another country are not subject to the jurisdiction of the United States? Or that children of temporary tourists are not born U.S. citizens for the same reason? The answer depends on whether we want to encourage or discourage the various categories of non-citizens who come to the United States.

The United States has the most generous legal immigration policy in the world. We give out every year about 1 million green cards to foreign nationals for legal permanent residence. It has been our policy to encourage the assimilation and naturalization of legal immigrants, and clearly their children born here should enjoy birthright citizenship under the 14th Amendment.

But what about tourists who enter legally on tourist visas, but who have no ties or loyalty to the United States other than wanting the benefit of U.S. citizenship for their child? We want to encourage tourism, and most birthright tourists are in fact fairly affluent. But do we want to encourage persons raised entirely in a foreign country by foreign parents to be able to enter the United States as citizens because their parents were birthright tourists? If Congress decides otherwise, this opportunity could be limited by making tourist visas unavailable to pregnant foreigners who intend to give birth in the United States.

The issue of the children of illegal aliens is part of the larger issue of illegal immigration. The economist Walter Williams, when he taught at Temple University, used to say that, "The poor people of the world may be poor, but they are not stupid. They are as capable as anyone in this room of doing multi-functional cost-benefit analysis to determine what is in their own self-interest."

So if we want to encourage more of those considering illegal immigration, all we have to do is lower the costs and increase the benefits. Conversely, if we want to discourage illegal immigration, we have to increase the costs and decrease the benefits. What we cannot do is lower the costs of illegal immigration through non-enforcement, and increase the benefits through amnesty or a liberal interpretation of the 14th Amendment, and then expect illegal immigration to go down.

Discussion of the genuine and complex legal issues surrounding the 14th Amendment should be encouraged and not arbitrarily cut off. Ultimately, we and our elected representatives must decide whether we want no numerical limits on immigration, i.e. open borders, or the alternative, enforcement of numerical limits as adopted by Congress. Pretending we have numerical limits, but not enforcing them, is not a viable policy.

Analysis on Proposition 8 decision

The decision to strike down Proposition 8 by a federal district court starts a process that will take this contentious issue towards a showdown at the Supreme Court.


The process has already begun with pro-Proposition 8 supporters appealing to the Ninth Circuit Court of Appeals. Here are the hypotheticals. If the Ninth Circuit Court lets Judge Walker's ruling stand, I am sure that the Supreme Court will have no choice but to grant certiorari as it falls directly under the Court’s original jurisdiction of states versus states. Currently, five states including the District of Columbia recognizes same-sex marriage while about half of the states in the union have provisions similar to Proposition 8 that bans same-sex marriage.

If it gets to the Supreme Court, and it decides to frame it as a civil rights issue, then this case will be classified under the minimum rationality standard - meaning that the government doesn't have to present overwhelming evidence to the Court to discriminate against same-sex couples. Thus, traditional marriage supporters should feel optimistic about their chances that the Supreme Court may rule in their favor. However, traditional marriage supporters' advocate on the government side (Obama's new Solicitor General, whoever that person maybe, now that Elena Kagan has assumed the bench) may not totally be one-hundred percent on their side. Why? - Because of Obama's position on the issue.

This is a quandary for the Obama administration whose middle-of-the-road position regarding same-sex marriage may get him into deep political hot water. President Obama is against Proposition 8, but he does not support same-sex "marriage", however, he is in favor of repealing Congress' Defense of Marriage Act (DOMA), which was passed by a majority Republican congress. Obama's walking a political tight rope with this issue fearing in alienating his base (pro-same-sex marriage supporters) while not losing the support of moderate to conservative independents (traditional marriage proponents) who helped him win in 2008. The bottom line is that the administration wants to make this a states' rights issue; however, looking towards the future, it has moved from the states to the federal courts and is inevitably now a federal issue.

A brief analysis at the current makeup of the court - five conservative and four liberal justices - indicates that the Court will rule in favor of traditional marriage; however, the swing vote in Justice Kennedy - a Sacramento native - is also known to side from time-to-time with the four liberal justices.

This is going to be a very interesting case if it gets to the Supreme Court whether it frames the issue under the 1st Amendment’s free exercise clause or the 14th Amendment's equal protection clause. In the former, the court may interpret the government, by expanding its definition of marriage to include same-sex couples, infringe on religious practice and freedom, thereby violating separation of church and state. Framing the issue this way would mean that it will rule in favor traditional marriage supporters. To frame it violating the 14th Amendment would make it a classic civil rights case. The Court could interpret the issue as violating same-sex couples' civil right to marry and thereby rule that they are not being protected equally under the law. This scenario will play well in favor of pro-same-sex marriage supporters.

Another scenario is that the court may narrow the scope of their opinion and rule in favor of states' rights, thereby upholding majority rule and Proposition 8. While this may reinforce the status quo, it will not make anyone happy nor will it make this issue go away as it will continue to prolong a violation of the Constitution's "full faith and credit clause" that requires states to recognize other state's official governmental documents. To rule in favor of states rights will mean that each state will continue to determine whether or not to recognize same-sex marriage. This would only prolong the matter rather than solving it.

The only answer is a clear and definitive opinion from the Supreme Court.