Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens
Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment. Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history.
The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws. The first clause of the 14th Amendment provides that “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.”
The Journal thinks the meaning is “straightforward”: “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘jurisdiction’ defines the territory where the force of law applies and to whom — and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth.”
It then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.” Professor Yoo makes the same claim (absent the ad hominem word “restrictionist”): “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.”
This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.
Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction.
He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.
Continue reading…
Source: Birthright Citizenship — Reform It without Repealing the 14th Amendment | National Review Online
Like this:
Like Loading...
Related
![Juan Espinoza, a legal immigrant to the U.S., takes care of his 9-month-old son, Kevin Isaac, since his wife Mirian Villalobos, an illegal immigrant from Honduras, was detained and deported by ICE, Tuesday, November 27, 2007, in Dallas, Texas. (Michael Ainsworth/Dallas Morning News/MCT) (Newscom TagID: krtphotoslive281607.jpg) [Photo via Newscom]](http://i0.wp.com/www.kentwarrenmcdonald.com/wp-content/uploads/2015/08/birthright-citizen.jpg?resize=1170%2C400)
