Birthright Citizenship - not in the 14 Amendment
By Bruce Crawford -- Fountain Valley, California
June 16, 2007
To buy into this notion of automatic citizenship for children born here of illegal immigrants is to overlook least three points:
1) it ignores the history and intent of the Fourteenth Amendment;
2) it ignores John Locke's social contract and his discussion of tacit consent and sovereignty;
3) it forgets that a person not here legally is not legally here.
Starting with the first point, the 14th Amendment was drafted to make it explicitly clear that two classes of people who were in America legally, but who lacked either citizenship or residency status, would now be citizens. These two classes were American Indians and blacks. The former were here before we arrived, and the latter were brought here against their will.
The man who drafted the citizenship clause of the Amendment, Sen. Jacob Howard, noted that it '... 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.' If the Amendment was not intended to bestow citizenship status on the children of foreigners and aliens who were here legally, it certainly was not meant to confer citizenship status on those born here out of an illegal presence.
To ignore Sen. Howard's intentions about who is entitled to citizenship by birth is to reject a constructionist interpretation of the Constitution and to adopt the expansive view of the late Chief Justice Earl Warren. To do that, Justice William O. Douglas said, relies on 'penumbras formed by emanations'. His quote was in reference to other loose interpretations of the 14th Amendment by the Warren Court.
The second point goes back to John Locke and his Two Treatises of Government. Locke's theories were well known to the founders. He said that when in a state of society one chooses to live under a government, he gives his tacit consent to obey the laws of that government. He further said that 'foreigners, by living ... under another Government ... are bound even in Conscience, to submit to its Administration' (emphasis in original).
When foreigners enter our country illegally, they have rejected the principle of tacit consent forthwith. They have demonstrated that they have no intention of obeying the laws of our government. They have refused to 'submit to its administration', much less to recognize our sovereignty. Further rejecting Locke's state of society, they do not 'consent with others' to put themselves 'under an obligation to every one of that society', but rather demand that society has an obligation (citizenship for their children) to them. This is a complete reversal of Locke's arguments for the social contract.
Lastly, in the eyes of the law, they have no legal presence. Therefore, none of their deeds has legal status. Even though they are physically here, they are not legally here. Even though they physically give birth here, they do not legally give birth here. Since no legal birth can occur, there can be no legal status conferred upon the child born of that legal non-event.
Certainly illegal immigrants are entitled to due process under the 14th Amendment in terms of deportation hearings and criminal proceeding. To expand that - - to mean that their children are deserving of citizenship in contradistinction to the words of the author of that clause - - is folly. for strict constructionists, one cannot get there from here."