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Counterpoint: Open to interpretation


Ernest Istook September 16th, 2010

The Supreme Court decided that when nondiplomatic foreign nationals are here legally, their children indeed become citizens. But it has not decided the issue regarding illegal aliens.

Birthright citizenship " the concept of automatic citizenship for anyone born on American soil, even if the parents are here illegally " has sparked debate about the 14th Amendment to our Constitution. Nobody seriously suggests repealing that amendment, nor should we.

But how should the amendment be interpreted? That is a worthwhile discussion.

A second level of debate involves who gets to do that interpreting. Only the Supreme Court? The Congress? Or can states get in on the act?

Expenses due to illegal immigration " such as education, health care and law enforcement " fall most heavily on states, so they naturally want a say in the solutions, not just to bear the burdens.

The costs to Oklahoma are uncertain. One estimate is that Oklahoma pays $160 million a year to educate children of illegal immigrants, with $94 million of that being for children born within the U.S. The same group (Federation for American Immigration Reform) estimates 85,000 illegal aliens were in Oklahoma as of 2005, ranking 22nd among the states.

Texas reports that 60,000 children were born there to illegal immigrant parents last year alone. The Center for Immigration Studies calculates 300,000 to 400,000 such births each year nationwide. That's a few million within a decade's time, so it's not a minor issue.

But contrary to some claims, the U.S. Supreme Court has never ruled that being born in America always bestows citizenship.

The text of the 14th Amendment reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

First, it clearly states that U.S. citizenship automatically confers state citizenship, which removes the topic from the arena of states' rights. A state like Oklahoma might, however, mount a legal challenge in the courts to force the issue.

That's because the limitation "subject to the jurisdiction thereof" has never been decreed by the Supreme Court to confer automatic citizenship on the children of illegal immigrants. The court has excluded children born to foreign diplomats in America, since they obviously maintain allegiance to their home nation, not the U.S. The unresolved question regards the allegiance of those who arrive illegally and retain their foreign citizenship.

In the 1898 case of U.S. v. Wong Kim Ark, the Supreme Court decided that when nondiplomatic foreign nationals are here legally, their children indeed become citizens. But it has not decided the issue regarding illegal aliens.

This may give Congress room to determine the issue through legislation, rather than awaiting some future court decision. A tougher route would involve a constitutional revision, which would not be the first time the 14th Amendment has been revised.

But outright repeal has not been suggested, despite some distorted media reports that claimed repeal was under consideration. The 14th Amendment contains several other vital provisions " such as due process and equal protection of the laws " that should remain undisturbed and certainly are not threatened.

The original and necessary purpose of the 14th Amendment was to assure full citizenship rights for former slaves, and to prevent states from limiting those rights. Mass immigration was a more orderly process in that era " such as when my grandparents came to America through Ellis Island. They made it clear from the first that they were submitting to U.S. jurisdiction; that's the proper first step on any path to citizenship.

Istook, a former Oklahoma congressman and gubernatorial candidate, is a distinguished fellow with The Heritage Foundation.
 
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