Thursday, May 7, 2009

Wydra on the Citizenship Clause and Birthright Citizenship of Children of Undocumented Aliens

Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, just published Birthright Citizenship: A Constitutional Guarantee, an American Constitution Society Issue Brief, arguing that the text, history, original understanding and intent, principles, and precedent of the Fourteenth Amendment's Citizenship Clause all point to "birthright citizenship [for] all those born on U.S. soil, regardless of the immigration status of their parents."

Wydra's Brief comes in the wake of a(nother) national election in which birthright citizenship was an issue as part of a larger immigration debate and following at least ten years of proposed, but unsuccessful, congressional legislation to end birthright citizenship. 

The Fourteenth Amendment Citizenship Clause makes "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof" U.S. citizens.  The current bill in Congress, H.R. 994, Sec. 301 (page 33), would define a person born in and "subject to the jurisdiction" of the U.S. to include only children of U.S. citizens, "lawful" aliens, and aliens serving in the U.S. armed services, thus prohibiting a child of undocumented aliens from achieving U.S. citizenship merely by virtue of birth.  (The same bill died in committee in the 110th Congress.) 

Wydra's Brief argues that this interpretation is unsupported by the text and principles of the Fourteenth Amendment, contrary to the intent of the amendment's framers, and contrary to the case law.  Wydra's brief also explores and debunks other common arguments against birthright citizenship: that "subject to the jurisdiction of" means "allegiance" to (thus limiting birthright citizenship only to children of parents who give complete allegiance to the U.S.); that Congressional debates over the Fourteenth Amendment suggest that both foreign diplomats and aliens were to be exempted from birthright citizenship; and that "subject to the jurisdiction of" implied mutual consent (thus limiting birthright citizenship only to parents who have been "consented to" by the U.S.).

This is an excellent read--a thorough analysis of birthright citizenship under the Citizenship Clause and a good example of constitutional fidelity as a method of constitutional interpretation.  It's also a nice addition to the CAC's good work on other relatively neglected portions of Section 1 of the Fourteenth Amendment--Gans and Kendall's article and briefs on the P or I Clause. 

SDS

http://lawprofessors.typepad.com/conlaw/2009/05/wydra-on-the-citizenship-clause-and-birthright-citizenship-of-children-of-undocumented-aliens.html

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