Birthright Citizenship, Hearings Could Reveal True Meaning of the 14th Amendment

Ted Hilton’s op-ed in the San Diego Union Tribune, July 8, 2011

“Hearings will reveal true meaning of the 14th Amendment, birth in the U.S. does not guarantee  citizenship.”

Birthright citizenship continues to be a part of the national dialogue. A recent Rasmussen poll showed 61 percent of Americans want birthright citizenship ended, 28 percent are opposed to ending it, and 11 percent undecided. This strong support is partly a public reaction to the discovery of birth tourism businesses, with foreigners entering the country for the sole purpose of giving birth to a baby that becomes an automatic citizen. Our attention is also heightened by one of the most-wanted al-Qaeda leaders, Anwar al-Awlaki, a citizen of Yemen and the United States who was born here while his parents were on temporary visas.

Due to a lenient birthright citizenship policy, there are enormous taxpayer burdens to fund the births of unauthorized aliens, tourists and others with border crossing cards. Taxpayers often pay for birth and extended care costs, including C-sections, premature deliveries, heart valve repairs and other surgeries.

The California Department of Health Care Services reports that in a recent year 107,000 unauthorized aliens qualified for Medi-Cal. Their deliveries represented 40 percent of public-funded births. Of the nation’s total births, 345,000, or 8 percent, are to those without permission to be in the United States. About 30 percent of the births to those without permission to be here are in California.

Unauthorized alien women comprise about 7 percent of the California female adult population, but have 20 percent of the births each year. This is partially due to high birthrates but also to birth tourism.

At the center of the national debate over birthright citizenship are differing interpretations of the constitutional phrase: “subject to the jurisdiction.” Does the Fourteenth Amendment guarantee citizenship for every birth? Americans need a resolution of the issue.

In the main citizenship case for resident aliens, Wong Kim Ark, the justices clarified U.S. citizenship is not guaranteed for every birth. They understood a “hostile occupation” as an exception for granting citizenship to births of parents who had not lawfully acquired a domicile here. The justices wrote that to be “subject to the jurisdiction thereof” and owe allegiance, one must first have permission to reside in the United States.

This part of the case is profoundly unknown. Even the Congressional Research Service overlooked that section in a report to Congress. The researcher incorrectly wrote this case made no distinction between lawful and unlawful residents.

But the Ark justices also cited a previous case where a person requires the nation’s consent to be under complete jurisdiction. Those without permission to reside are only under territorial jurisdiction.

Ours is a benevolent nation that has gradually allowed granting citizenship for every birth, except those to diplomats. The current practice primarily took hold during the 1960s. During the 1950s, children born here of lawful guest workers were not given U.S. citizenship.

By conferring citizenship without regard to the circumstances, the nation has regressed to a practice in medieval England. This is occurring despite laws that require citizenship to be determined by the parent’s status. Yet, the courts have never decided a citizenship case for births to parents with temporary or unauthorized status.

Congressional hearings are long overdue to know all perspectives of the citizenship clause. The testimony can dispel any myths and expose the true history. The American people can discover that the Fourteenth Amendment’s authors did not intend to separate families. They wanted citizenship for a birth to resident aliens, who are themselves eligible to become citizens. All Wong Kim Ark justices concurred with that intent.

Voters have made it clear in polls that they do not want the Constitution amended. Congress has the authority under Section V of the Fourteenth Amendment to legislate the amendment’s original intent. When Congress and the State Department hear the recorded words from the 1866 congressional debates, both can correctly interpret “subject to the jurisdiction thereof.” The United States Supreme Court can affirm that tourists, temporary residents and aliens subject to deportation are only under territorial jurisdiction.

Congressional testimony will reveal the writings on consent by Chief Justice John Marshall. As founder of our nation’s legal system, his words can guide us to rethink granting citizenship. Better understanding of our origins can unite Congress, the courts and the American people to respectfully concur which lawful statuses are intended to be subject to the nation’s complete political jurisdiction, under the United States Constitution.

Hilton is a San Diego resident and political activist who has conducted congressional research on birthright citizenship for Rep. Brian Bilbray, R-Solana Beach.