The View From 1776

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The Wall Street Journal has for some time been a supporter of essentially unlimited immigration.  The Journal’s editorial board cites the work ethic, family coherence, and religious morality of most Hispanic. Indian, and Asian immigrants.  The board also notes that the frequent charge that Hispanics are taking jobs away from American citizens is not generally true, because very few Americans are actively seeking jobs such as lawn care workers, gardeners, agricultural field laborers, janitorial laborers, and restaurant kitchen helpers.

On the other side of the ledger, there is substantial anecdotal and other evidence that large numbers of immigrants look upon their jobs in the United States as temporary arrangements for the purpose of sending as much money as possible back to their native lands.  Many Hispanics in California and New York maintain dual residences and live in their native lands several months each year.  They regard themselves as citizens of their native countries and vote in elections in those countries.  When they require medical attention, however, many of them flood hospital emergency rooms as welfare patients, at the expense of taxpayers.

It is this perception of free-loading, as if it were another liberal-Progressive, Great-Society, constitutional “entitlement,” that causes tax-paying, legal citizens’ blood to boil.

Further injury to Constitutional sensibilities comes from liberal-Progressives insistence that illegal immigrants and their children be educated at public expense.  One result is overburdening public schools with students whose inability to speak English and lack of academic preparation diminish the level of education that can be imparted to tax-payers’ children.  Another is the costly and socially destructive insistence that public documents be published in multiple languages.

Multi-cultural education, coupled with the foregoing, acts like a corrosive acid to tear down the cultural consistency without which no society can survive.  Instead of a nation unified by common language, common ideals, and common respect for law and order, the one from many (E Pluribus Unum) of our national motto, we are becoming the pluralistic ideal of liberal-Progressivism, a figurative bus terminal crowded with strangers unconcerned with each other, bound for somewhere else.

A special case within the controversy is that of the children born in the United States to illegal immigrants.  Under regulatory and judicial rulings, those children are now considered automatically to be citizens entitled to full welfare benefits, even though their parents, as illegals hiding from Federal authorities, are not sharing a full tax burden, if indeed they pay any taxes.

This last issue was addressed earlier in Illegal Citizenship, Illegal Citizenship Birthrate, and Illegal Citizenship Revisited.

The following essay by Frank Madarasz and Ray Justus brings us up to date and rebuts a recent Wall Street Journal op-ed piece by Tamar Jacoby, a Senior Fellow at the Manhattan Institute.

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A Reply to Tamar Jacoby
By Frank L. Madarasz and Raymond P. Justus

In her Op Ed piece on November 19 entitled “Kiss the Melting Pot Goodbye” Tamar Jacoby makes an emotional argument that birthright citizenship for aliens is a key to America’s successful assimilation and integration of immigrants.  She makes no distinction between legal and illegal aliens when she cites over 200 years of history based on (English) common law and the U.S. constitution.  Her representation of the historical facts is incomplete and misleading, effectively distorting our history, heritage and law in order to buttress her thesis.

She asserts that denying birthright citizenship could lead to the kind of turmoil (“Do we want immigration riots here?”), which is seen with French Muslims.  There is, however, no logical connection between the situation of illegals here and what is happening in France.  Muslims in France have clearly stated they are not interested in integrating into the French culture: they are essentially separatists that want Islamic autonomy (journalist Amir Taheri).  Their unrest appears to be due as much to their core religious beliefs as it is to a lack of integration and unemployment.  Any possibility of immigration riots happening here can be considerably reduced if the administration, Congress and the courts do their constitutional duties to secure our boarders from invasion, enforce laws already on the books, and respect the will of U.S. citizens, as demonstrated in several state referendums, by denying special privileges to illegal aliens.

Ms. Jacoby goes on to state that there are those in Congress (Republicans as it be) who believe “that illegal immigrants enter the country expressly with the intent of giving birth.” She contends that no one has found any evidence of this practice today and that the high birth rate of illegals may be attributed to “births to newly arrived mothers—or simply undocumented women.” Simple logic tells one that the women who run across the border to give birth (and there is an industry of midwives on our southern border to assist them) do so for the immediate medical and welfare benefits granted to their children as U.S. citizens and themselves as the mothers, with the dads to follow shortly.  An accurate figure of the number of births to illegal aliens on U.S. soil is difficult to estimate.  However, FAIR (http://www.fairus.org/) estimated that in the 1990’s between 287,000 and 363, 000 children are born to illegal aliens each year.  More recently the Center for Immigration Studies (http://www.cis.org/) estimated 383,000 births per year. 

Ms. Jacoby goes on to state: “For more than two hundred years, common law and then the Constitution granted citizenship to the children of immigrants.  But now that it is Latinos who qualify, the Republican Party wants to change the rules.” Notice that in her first sentence she does not say “children of illegal immigrants,” which neither common law nor the Constitution’s 14th amendment adhere to, and thus no rules are being changed.  Common law in the early states was derived from English common law, to which the colonies were subject.  The Calvin Case of 1608 clearly established the foundation of citizenship in English common law.  Lord Edward Coke declared that one “cannot be a subject of the King of England, unless at the time of his birth he was under the ligeance [sic] and obedience of the King.” He further noted that under common law, one who is born within the lands of the sovereign, but not subject to the jurisdiction of the sovereign—as the child of a diplomat, as part of a hostile invading army, or as a person present without permission—is not recognized as a citizen of that nation.  In other words, there must be consent and mutual obligation between the person and the sovereign, and a submission to the loyalty and obedience of the sovereignty.  This is essentially the common law that was adopted by each of the newly formed states of the United States.  It applied only to the white population.  Thus citizenship, right from the country’s inception, required consent, mutuality of obligation, and a declared allegiance.

Until the Civil war the federal government had pretty much left citizenship and residency issues up to the states.  When slaves were emancipated they were considered “aliens,” a status that did not qualify them for citizenship under states’ constitutions.  The U.S. Constitution gave little guidance to this issue.  So in order to insure that the freed slaves acquired citizenship and its associated rights the Congress constructed the 14th Amendment, ratified July 9, 1868, which created a federal or national citizenship category.

Senator Jacob Howard, a co-author of the 14th Amendment, laid out the clear intent of law: “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.  This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” The meaning of words “subject to their jurisdiction” are the source of contention today.  But clearly, if viewed in terms of common law, which was foundational in U.S. citizenship policy, this must mean consent, mutuality of obligation, and declared allegiance of the parents of a child born on U.S. soil.

In the early days after the 14th Amendment there were several landmark Supreme Court cases that affirmed the concepts of consent and mutual obligation as essential to the interpretation of the phrase “subject to jurisdiction thereof”: Slaughter-House Cases (1873), Minor v. Happersett (1874), United States v. Cruikshank (1875), Elk v. Wilkins (1884), and United States v.  Wong Kim Ark (1884).  In Wong Kim Ark it was found that although his parents were not citizens they were lawfully resident aliens subject to the jurisdiction of the United States and thus their son was entitled to birthright citizenship.  The Supreme Court did not address the question of those whose parents did not present themselves for admission to the United States, and since then has offered little guidance to the answer.

In its most recent case, Hamdi v. Rumsfeld (2004), the Supreme Court managed to add another degree of obfuscation to the concept of citizenship.  Yaser Esam Hamdi was a Taliban fighter captured in Afghanistan.  He was born in Louisiana while his Saudi father had been working on a project for Exxon.  Hamdi claimed birthright citizenship and the Court awarded it to him.  His parents were indeed here legally and thus subject to the jurisdiction of the United States, but there was no formal declaration of allegiance.  With this decision it is easy to extrapolate that the same birthright would apply to children of parents in a guest worker program.  It is imperative that Congress address and clarify the concepts and rules of citizenship so that decisions from the bench are based on unambiguous Constitutional legislation, and not a personal interpretation of the 14th Amendment.

U.S. citizenship is a privilege and an honor that should not be taken lightly; it must be earned.  One important way of earning this privilege for children born on U.S. soil is to have their parents follow our laws of immigration.  In doing so they would demonstrate consent and the acceptance of mutuality of obligation that would ultimately set an example of patriotism for their children.

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