Monday, September 14, 2015

Birthright citizenship, setting the record straight

I am tired of my views and those of many other conservatives being misrepresented in an effort to taint our opinions.  In this case I am referring to the issue of illegal immigration and, most recently, the discussion of "birthright citizenship".  Conservatives are frequently accused of being anti-immigration due to our stance against illegal immigration in particular.  Commentators take the words of conservatives and eliminate the context of discussion of illegal immigration in order to taint our views.  We are then labeled as anti-immigrant and hypocrites given our own descent from immigrants.  Ignored in the accusations are the fact that most of our ancestors came to the United States legally under the laws in effect at the time of arrival.  My own great grandparents came from Germany around the turn of the 20th century, legally migrating with their children, including my grandfather.  To most conservatives illegal immigration, is a question of the rule of law rather than a question of the numbers and origination of who comes here.  

Legal immigration is a separate issue.  I have issues with our current legal immigration system, but not based on numbers or on country of origin.  My concerns relate more to family reunification laws that permit legal immigrants to bring significant family with them, family that is not necessarily productive or a benefit to our system; as well as the broad interpretation of the definition of "refugee" that is currently utilized.  My understanding and observation of current immigration law suggests that significant numbers of people are admitted based on the simple fact that their country is an unpleasant place to live.  In my opinion this actually prevents positive changes in those countries as it reduces the population of those with frustrations,  the kinds of people who might drive future change in their political systems.

However, the main issue at hand right now is birthright citizenship.  Birthright citizenship has been a topic of considerable discussion for many years.  The Constitution states that anyone born in the United States and "subject to the jurisdiction thereof" shall be a citizen.  What it doesn't do is define the phrase "subject to the jurisdiction thereof".  Initially the specific exemptions listed as not subject to the jurisdiction of the United States included foreign dignitaries and members of Indian tribes.  These exemptions are been used to make the claim that the writers of the Constitution never intended that the children of undocumented or illegal immigrants be denied citizenship.  Current law, which assumes that anyone born in the United States (with the only current exception being the children of foreign dignitaries as Indians were granted citizenship early in the twentieth century) is based on a Supreme Court case from the late 1800s, Wong Kim Ark.  WKA was born to long term resident parents and the case, to give the abridged version, recognized that "subject to the jurisdiction" applied to the plaintiff as he had been born in the United States. 

The counter argument, however, is that there were, to the best of my knowledge, few immigration laws relating to who could legally migrate to the United States.  There were health and public impact exceptions and that was the primary purpose of the Ellis Island facility.  Apparently fewer than 2% of arriving immigrants were deported after their inspections, generally based on either health the possibility of public dependency.  Given that history, it is not unreasonable to assume that the grant of authority to Congress to regulate immigration would also include the authority to determine who was subject to the jurisdiction of the United States, including the right to assume that illegal immigrants, having entered the country without the permission of the government, have placed themselves outside the jurisdiction.  These illegal immigrants, despite their presence within the territory of the United States, still hold citizenship in their country of origin and therefore their children are citizens of that country.  This, by a reasonable definition, makes them subject to the jurisdiction of that country of origin and, therefore, not subject to the United States.  The phrase does not, contrary to recent argument, mean subject to the laws of the United States.  Anyone in the United States is subject to our laws, much like we would be subject to the laws of Japan while visiting.  A similar argument (which was the gist of the WKA decision described above) could be made that legal residents are also subject to the jurisdiction of the United States, having agreed to abide by and, presumably, not engage in subversive acts against the United States, therefore their children would have the opportunity to obtain citizenship.

Finally I wish to address the issue of the deportation of children born in the United States and therefore granted citizenship under existing legal precedent.  Although much has been made of the fact that Donald Trump apparently stated that he would revoke their citizenship if he were President, the reality is that the President does not have the authority to revoke anyone's citizenship.  Additionally I would make the argument that generally laws that apply retroactively are unjust and unfair.  Most rational arguments that I have heard in favor of rescinding the concept of birthright citizenship do not attempt to remove citizenship from current citizens, nor do they attempt to eliminate the granting of citizenship to anyone born here while their parents are legally present
For more interesting discussion check out this Federalist paper at

Meanwhile, an open comment to the media.  Stop misrepresenting what conservatives think about issues and stop conflating legal and illegal immigration. They aren't the same thing, we don't think they should be treated the same, and this BS where you accuse us of being racist because we are opposed to illegal behavior isn't going to stop us.

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