Birthright Citizenship: A Great Blessing but Must Have Limits

I support birthright citizenship and legal immigration, generally. However, I am also a fervent opponent of breaking the law, such as illegal immigrants do. Legal immigration speaks for itself, and birthright citizenship should apply to their offspring born in America.

But I believe there should be certain minimum requirements for birthright citizenship, such as parent(s) who are legally in the U.S. With regard to qualifying for birthright citizenship, one should be born to parent(s) who are American citizens or are legally in the United States.

My mother emigrated from France to the United States 59 years ago. She arrived a few months after she’d married my father, a U.S. Marine stationed in France with the Sixth Fleet. So, again, I support immigration, the legal kind. It makes America a stronger nation when done correctly.

I did a little research regarding how birthright citizenship works in America. If you are born on U.S. soil or on foreign soil and your parent(s) are U.S. citizens, you are an American. Erin Blakemore wrote a fascinating, clear, and concise article for History.com.

Blakemore lays out the history of birthright citizenship and its centuries-long travails, trudging through the U.S. federal judiciary. Blakemore cites the 1898 Supreme Court case of Wong Kim Ark who was born in the United States in 1873 to Chinese immigrant parents. Upon returning to America after a visit to China, immigration authorities would not allow Wong back into the U.S., arguing he was not a U.S. citizen.

The government based their decision on the Chinese Exclusion Act of 1882. This was a racist act of Congress that severely restricted Chinese immigration to the United States.

A court case forced Wong to remain onboard ship for months, awaiting a U.S. Supreme Court decision on his status. The DOJ had selected Wong’s situation as a test case to prove American-born babies of Chinese parents were not U.S. citizens. Surprisingly, the Court ruled in Wong’s favor. The ruling declared Wong was a citizen because he was born on American soil.

For the majority, Associate Justice Horace Gray wrote, “The Fourteenth Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

Gray’s comments have to pertain to those legally “domiciled” in America, right? After all, the Fourteenth Amendment holds citizenship applies to, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof” and “not subject to any foreign power.” People in the U.S. illegally are subject to a foreign power as citizens or subjects of those nations.

For these purposes, I’m thinking subject to the jurisdiction thereof applies to citizens of a specified country who are vested with all the rights and privileges of that country? Not someone who is simply required to comply with the laws, no different from every other citizen and non-citizen.

For example, while foreign citizens and subjects must obey the laws of the United States while in America, they do not possess all the rights citizens enjoy. For instance, non-citizens cannot vote in U.S. elections or qualify to hold certain jobs or elected offices. However, though living in the U.S., they can still vote in their native countries (assuming they comply with their country’s requirements), as they are still subject to those jurisdictions.

It seems to me the author omitted a crucial point in this otherwise excellent article. Regarding birthright citizenship, the author made no distinction between legal and illegal immigrants. The author seemed to deliver the historical information about birthright citizenship absent an obvious exception that should exist for those bearing children while illegally in the U.S.

Now, if the U.S. Supreme Court rules even children born to illegal immigrants are entitled to birthright citizenship, well, so be it. However, as much as we’re talking about a cute baby who might grow up to be a great, productive citizen, birthright citizenship under these conditions incentivizes entering America illegally. It creates a magnet for lawbreaking. I don’t think anyone can deny that. In fact, I’d like someone to explain to me how, if we allow illegal immigration, legal immigration can exist? How could it? What would legal immigration look like if anyone in the world could just walk across the border with impunity?

Think about it this way: What would be the difference between shopping and shoplifting if the government ignored theft laws and refused to enforce shoplifting? Why buy anything when you could simply take it? Of course, those with strong moral centers would still know it is wrong to take things from others without permission or paying. This also applies to those foreigners of strong moral character who insist on following proper immigration procedures.

According to Blakemore, a little better than 50 percent of Republicans and nearly 25 percent of Democrats oppose birthright citizenship for non-citizens. That’s a significant minority of Americans but also shows a majority supports legal birthright citizenship.

As long as a foreigner is in the country legally and happens to have a child on American soil, that child is entitled to U.S. citizenship. This includes people here on vacations, educational visas, work visas, and legal resident aliens, like my mother was.

I think it could get sticky if the “legal” reasons for qualifying for birthright citizenship were too complicated. I know some people don’t agree with this view, and that’s fine. I can see valid arguments for a narrower interpretation of who qualifies for birthright citizenship.

However, birthright citizenship should not extend to those who bear children after crossing into the U.S. illegally. Same goes for those remaining in America illegally, such as after visas expire. These unlawful statuses should nullify their offspring’s eligibility for birthright citizenship.

A couple of examples explain the legal principles between the two conditions for birthright citizenships: jus soli (right of the soil) and jus sanguinis (right of the blood).

Martial Arts legend Bruce Lee is an example of the first condition. He was born (Lee Jun-Fan) in San Francisco, California in 1940. His parents were in the U.S., legally, performing with a Chinese theater group. While his parents were Chinese citizens, Lee was born on American soil: jus soli.

Another high-profile example, this one of the second condition, is Texas Senator Ted Cruz. He was born in Calgary, Canada in 1970. But while he was born on foreign soil, he was born to an American mother to whom, of course, he was related by blood: jus sanguinis.

During today’s heated border debates, especially with the far left, I don’t hear many people distinguishing between legal and illegal immigration regarding birthright citizenship. Isn’t it a matter of national preservation to distinguish between those legally and illegally in the country before parents’ children qualify for birthright citizenship? As the left is so fond of saying about so many other issues, not making this distinction is not sustainable. (But who cares as long as they vote Democrat, right?)

Shouldn’t a parent’s U.S. immigration status affect eligibility for American citizenship for any children they bear here? Let me put it this way: As a cop, sometimes I’d pull someone over who had a driving restriction requiring the driver wear glasses with corrective lenses while driving.

If the driver drove without his or her glasses, essentially, he or she would be driving without a license. Their failure to comply with their restriction voids their privilege to drive. When I cited such a driver, I wrote the ticket for driving without a license.

How is this concept any different from entering a country illegally? From the point a person breaks the law, haven’t they voided their privilege to enjoy rights associated with a legal entry to the U.S., including birthright citizenship for their kids?

One more item should be addressed before closing. On the surface it may seem somewhat murky when Supreme Court Justice Gray included the words “domiciled within the United States” in his opinion on the Fourteenth Amendment and birthright citizenship in the Wong case. Without thinking about it, Gray could mean anyone living in the U.S., legal or not.

But doesn’t he have to mean those living in the U.S. either permanently or temporarily, but legally? I’d argue, logic dictates the court’s ruling must assume legal residency or status, otherwise why have a rule, a law, a constitution, or an immigration process? For instance, the Declaration of Independence cites a right to Pursue Happiness. Well, that doesn’t apply if robbing banks is a part of your plan for pursuing happiness. It assumes legal pursuits but doesn’t explicitly state it because legality is assumed. Without legal status there is no illegal status?

Without legal conditions and a process for obtaining U.S. citizenship, birthright or naturalized, America would have de facto open borders. And an open border is the same as no border at all.

As with the driver with the vision restriction, comply with the motor vehicle laws, and you are driving legally—go ahead and drive from New York to L.A. But if you don’t comply with the law, you’re not driving legally. Similarly, comply with immigration laws, and you are legally in the country—go ahead and have those American babies. But if you don’t comply with the law, you’re not in the U.S. legally, and you don’t get to make those American babies. Even with requiring a non-citizen be in the country legally, birthright American citizenship seems pretty generous, indeed.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Steve Pomper

Steve Pomper is an OpsLens contributor, a retired Seattle police officer, and the author of four non-fiction books, including De-Policing America: A Street Cop’s View of the Anti-Police State. You can read a review of this new book in Front Page Magazine and listen to an interview with Steve on the Joe Pags Show. Steve was a field-training officer, on the East Precinct Community Police Team, and served his entire career on the streets. He has a BA in English Language and Literature. He enjoys spending time with his kids and grand-kids. He loves to ride his Harley, hike, and cycle with his wife, Jody, a retired firefighter. You can find out more about Steve and send him comments and questions at www.stevepomper.com.

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