Born in the USA

Hugh Hewitt, on his radio show today, asked John Eastman (one of "The Smart Guys") about his proposal to Congress that the citizenship laws be changed, based on the wording of the Fourteenth Amendment.

The first paragraph of Section 1 of this 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."

John Eastman is a professor of law at Chapman University, as is Hugh Hewitt. The other "Smart Guy," Erwin Chemerinsky, is a professor of law at Duke University (Hugh's list of regular guests, linked above, is out of date for Erwin, who used to be at USC).

Now to the issue: John reads this paragraph of the Fourteenth Amendment with more emphasis on the second clause (" and subject to the jurisdiction thereof") than most people currently give. He cited case law on the air that's beyond my memory to repeat here, but his point was that some of the earliest rulings on challenges to this amendment came down on the side of determining where the person was subject to jurisdiction.

For instance (my "for instance," not John's), if a British family is visiting Disneyland and the pregnant mother goes into labor prematurely and has her baby in an Anaheim hospital, that baby will go home with his family to England, where he will be subject to the laws of the UK, not of the US. According to John, that baby should not be given American citizenship, since he does not meet the full criteria for being granted citizenship. And also according to John, Congress has the power to change the citizenship laws to clarify that the Disneyland baby would not qualify for US citizenship. This change would only need a statute from Congress, not another constitutional amendment, since the wording is already in the constitution.

In a rare moment, Hugh and Erwin come down on the same side of an issue, disagreeing with John over (I believe) both the constitutionality of John's proposal and the wisdom of it.

I can't speak to the constitutionality question, but then Hugh, Erwin, and John are all constitutional law professors and they almost never agree with each other either. But as Hugh said during the Harriet Miers debate, the Constitution isn't that hard to read and understand.

I'm with John on this one. It has always baffled me why we should give citizenship to babies born en route from one country to another. Or why we should dangle such an enticing carrot as "anchor babyhood" to encourage people to come here illegally. Of course the anchor baby issue requires the cooperation of the immigration folks who give naturalized-citizenship priority to the families of citizens. But the combination of instant citizenship and immigration priority draws people here illegally who might not otherwise come.

John's point is that these concerns can be addressed by Congress without having to resort to a constitutional amendment. And it sounds as though the House will be taking up the issue soon (as Congresspeople, not normal people, measure "soon"). It's about time!