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.