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The sticky question of birthright citizenship.

October 30, 2018

Although one has to wonder a bit at the timing, the question of birthright citizenship is in the news again.

If the President does go forward with this on his own hook, i.e. via executive order, it will be halted via injunction before you can count to ten, and will undoubtedly be framed as an attack on Hispanics, or as punishment for illegal immigrants.

In truth, people from many nations, particularly the Chinese, come into the U.S. on visas just to give birth here.

Depending on your point of view, that’s either so the kid can eventually ask for the parents to be granted green cards so they can live here, or if you are a real spy novel enthusiast, maybe it’s the Chinese and Russian governments way of growing their own U.S. born spy cells.

For sure, under current law it can contribute to chain migration after a couple of decades or so.

Birthright citizenship was not a part of the original Constitution, but was attached to it via amendment to give protection to the slaves freed after the Civil War.  Nevertheless, it is considered part of the Constitution at this point.

Where birthright citizenship could well come a cropper is if the parents of the child or children in question are still under jurisdiction of their home countries.

Obviously if they are only here on a visa, or reside here illegally, they are still subject to the jurisdiction of their home countries, since they have not renounced allegiance to those countries as they are required to do if they take the oath of citizenship.

Given that many people in the “caravans” are marching to our border proudly waving the flags of their home countries, one could argue that they have no intention of assimilating as citizens themselves.  At best, they could be seeing themselves as tenants, not residents or citizens.

If the order was to go forward, it is nearly a foregone conclusion that it would come before the Supreme Court.

And that presents an interesting scenario.

We just put two strong constitutional originalists on the Court. It will be interesting to see whether they would rule in favor of birthright citizenship, because it is a part of the Constitution, or against it on the grounds that it confers a status upon the child that may not square up with the national jurisdiction or personal convictions controlling their parents.

Perhaps we can watch the Court sort that out after the election.

From → op-ed

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