The key to the birthright citizenship is the 14th amendment to the constitution. The first sentence of the first section is the key to birthright citizenship. It says:
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.
The key phrase in this sentence is this: “and subject to the jurisdiction thereof.” The exact meaning of that phrase is what the courts will debate. Does that mean everyone save those with diplomatic immunity because everyone is required to obey our laws, regardless of citizenship? If so, then birthright citizenship is supported.
If, on the other hand, “subject to the jurisdiction thereof” means those with a legal right to be here, either as citizens, those granted permanent residency, or those with a valid current visa, then birthright citizenship is much more constrained and not available to the children of illegal immigrants.
Or it could be interpreted even more narrowly to exclude infants whose parents - legally here on visas - are citizens of another country and whose citizenship there grants their child automatic citizenship in that other nation. That would withhold citizenship from those born here whose parents retain foreign citizenship, for instance those with H1-B or student visas.
Also involved in the discussion of meaning is the original intent of the amendment which was to give rights to freed slaves and their children. Those freed slaves did not have citizenship in whatever African nation or colony from which their ancestors were plucked, if that was even known. The intent of the amendment was to give citizenship rights to stateless people previously held in involuntary servitude.
Everyone who has thought about the birthright citizenship issue believes it will eventually be decided by the Supreme Court. The increased number of originalist justices on the current Court suggests it could go against birthright citizenship for the children of illegal immigrants. The liberal Warren or Burger courts would have favored it.
For an attorney’s version of the above issue, see John Hinderaker’s Power Line column.
