Alexander's Column

Immigration Policy (Part 2 of 2): "Subject to the jurisdiction therof"?

By Mark Alexander · Jun. 8, 2007

“Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense.” –Thomas Jefferson

(Read Part One of this series, “Immigration Policy: Border Security”?)

Would it surprise you to know that more than 20 percent of children born in the United States are born to illegal aliens? As recently as 2002, that figure was 23 percent. Currently, all those children enjoy birthright citizenship and all its favors, despite the fact that there are legitimate questions about the constitutionality of such a right.

More on that in a minute.

Demo Senate Majority Leader Harry Reid has withdrawn the so-called “Secure Borders, Economic Opportunity and Immigration Reform Act of 2007,” after two failed attempts to muster the 60 votes necessary for cloture in order to move the legislation for full a Senate vote.

In other words, the Senate is a long way from passing an immigration bill of its own, much less coming up with something that will work in conference with the House. Indeed, that’s the good news.

As I outlined in Part One of this series, Immigration starts at the border, the immigration debate is nothing more than political pandering to 12 percent of the electorate – Latino voters – unless it begins with a commitment to secure our southern border and coastlines. As [Ronald Reagan |http://Reagan2020.US/] declared, “A nation without borders is not a nation.”

Only after the establishment of functional border security can a legitimate immigration debate take place.

At that point, immigration legislation must authorize and fund these priorities: enforcement of current immigration laws; immediate detention and deportation of those crossing our borders illegally; deportation of any foreign national convicted of a serious crime or seditious activity; a guest-worker program (with reliable documentation as a prerequisite) to meet the current demand for both skilled and unskilled labor; penalties against employers who hire illegal aliens; no extension of blanket amnesty or fast-track citizenship (new citizenship applicants go to the back of the line); the preservation and provision of tax-subsidized medical, educational and social services for American citizens and immigrants here legally; and the Americanization of new legal immigrants, including an end to bilingual education and a national mandate for English as our nation’s official language.

Currently, there are deportation orders for more than 600,000 illegal aliens, but virtually no funding or effort to enforce these orders. And while there are substantial penalties for hiring illegal immigrants, there is no funding or effort to enforce these laws, either.

Question: If there is no comprehensive effort to secure our borders and enforce existing immigration laws, what difference would any new legislation make, other than to shore up Latino voter constituencies?

While the swamp rats are sorting out that question, hundreds of thousands of immigrants are birthing children in the U.S. (more than three million at last count). It is assumed that they have a constitutional birthright to citizenship. As such, those children, and their attendant families, are served up a plethora of social services at taxpayer expense. They are also the anchors for a chain of migration because upon reaching age 21, the children of illegal immigrants can petition to have citizenship extended to the entire family.

But does the Constitution authorize birthright citizenship to illegal aliens?

The relevant constitutional clause concerning birthright is found in the 14th Amendment, one of three “reconstruction amendments” proposed after the War Between the States. The 13th Amendment banned slavery, the 14th ensured Due Process and Equal Protection under the law for former slaves and their children, and the 15th banned race-based qualification for voting rights.

Section 1 of the 14th Amendment (as proposed in 1866 and ratified in 1868) 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.” It explicitly referred to children born to U.S. citizens and those born to aliens lawfully in the U.S.

Why did the amendment’s sponsors insist on adding, “and subject to the jurisdiction thereof”?

For insight, consider the words of Sen. Jacob Howard, co-author of the amendment’s citizenship clause. In 1866, he wrote that the amendment “will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States…”

By extension, then, it is fair to conclude that, in addition to the children of those legally in the U.S. under the above exclusion, this would apply to the children of those illegally in the U.S. – until the Supreme Court took up the question of the rights of illegal aliens to taxpayer services in 1982. In Plyler v. Doe, the judicial activists concluded that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

But Plyler v. Doe is historically and legally inaccurate. In the context of original intent, children born to those who have entered the U.S. illegally – those who are not citizens – are not “subject to the jurisdiction thereof.” One would hope, in the course of the current debate about immigration, that Congress and the courts would actually pay homage to the plain language of our Constitution.

Not much chance of that, though, especially when it’s not politically expedient.

Meanwhile, 12-20 million illegal aliens in the U.S. have hundreds of thousands of children, who are extended birthright citizenship – at an annual cost to taxpayers of between six and ten billion dollars.

Moreover, the “economic benefit” argument for “guest workers” is suffering a significant trade deficit. On average, the households of illegal aliens are paying about $9,000 in various taxes, and receiving about $30,000 in benefits – direct benefits, social services, public services and population based services like education.

While Congress fiddles, 3,200 of our Latino neighbors illegally cross our border with Mexico every day.