The basis for birth right citizenship in the United States is specifically outlined in the Constitution of the United States:
Section 1. 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. (Fourteenth Amendment, Constitution of the United States, Ratified in 1868)
Our discussion is “birth citizenship” and not “naturalized citizenship.”
Interpreting these few words italicized above in the 14th Amendment looks simple. But is it? The Constitution does not define the territorial limits of “…in the United States.” Is it just the states? Possessions? Anywhere we claim sovereignty or must we have absolute sovereignty where we claim sovereignty? What if parts of the acknowledged lower 48 states were temporarily occupied by a foreign power, later defeated, and the issue of birth came from occupancy, by children of occupying soldiers? Does the lack of allegiance of the foreign mother and father to the United States enter the question as well as geography? Certainly we would have had no absolute sovereignty over occupied portions of the US nor ability to claim sovereignty over the parents in an invading army or the territory of an occupying power. The parents would certainly owe no allegiance to the United States. In fact their total military attitude is resistance to the United States and refusal to accept US sovereignty. In the proper case a court must decide these issues.
Additionally, the Constitution does not define “…subject to the jurisdiction thereof.” Is that restricted to simple jurisdiction over the geography involved or does it extend to the allegiance owed a sovereign by individuals born here and/or their parents? Our Courts look to English Common law to resolve these issues not specifically defined in the Constitution. Our law is also based in large measure on English common law.
First: You must be born within the territorial confines of the United States ever how defined. What constitutes the territorial confines of the United States is not herein discussed, but even being born within the admitted territorial confines of the United States “alone” does not conclude the issue of birth citizenship in the Constitutional wording!
You must also show Jurisdiction. Second: Any person so born within the territorial confines of the United States must also be subject to the “jurisdiction of the United States.” Jurisdiction of the United States here is an involved issue. It can involve (a) the status of your parents, (b) the allegiance of your parents (c) the absolute actual physical sovereign control of the geographic place of your birth and (d) the United States is entitled to your allegiance at your birth? Courts look to the Common Law of England accepted by us to define and apply these issues.
In a very long opinion that broached many wonderful concepts of law about birth citizenship the court made the following observation, in the next paragraph, in coming to a final decision in the 1890’s concerning a birth right issue. This is an American Supreme Court decision (US v Wong Kim Ark.) Wong Kim Ark was born in the United States. His parents were citizens of China legally conducting business in the United States when he was born. No law existed at that time that allowed them to even become naturalized citizens. They returned to China and Wong stayed. Wong visited China and was denied reentry into the United States. The following quote is dicta, which simply means it is highly respected but not a basis for the decision at hand. It shows the reas of interest of the Court. Another consideration in reaching our constitutional decisions is England does not have a written constitution as we do. Their birth right decisions, given respect by us, are court decided by common law criteria without interpreting a written constitution.
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country (my note: reference to the United States) and continuing to the present day, aliens, (This is my note to the quote here: the assumption in this quotation here seems to be that “aliens” here referred to were “legal aliens” in the country by legal permission of the absolute Sovereign, not “illegal aliens” and so the argument here refers, to me, to be rights of “legal aliens”. My argument is that birth citizenship does not pass to children born in the US of “illegal aliens” who are in our country directly contrary to the laws of our country and as an insult to our sovereignty. These illegal aliens are in fact flaunting the laws of the host country and specifically defying the sovereignty of the United States in multiple ways and in fact disputing the jurisdiction of the laws of the United States over them or their children by refusing to conform to our law. Their daily life is illegal subterfuge. Who knows any court’s ultimate determination but it is a valid argument!) while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, (My note: this is a reference to the status of the parents before the child was born and had a bearing on the determination of birth and citizenship. The reasoning, to me, is based initially on the parents to begin with) and therefore every child born in England of “alien parents” was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.” (Page 659, United States vs Wong Kim Ark)
I know of no case that specifically discusses the birth right citizen status of children of foreign citizens here illegally and expressly defying the sovereignty of the United States and here expressly at the displeasure and disobedience to the laws of the United States. Socialist Democrats mention Plyler v Doe, 1982, discussing equal protection under the constitution of the United States between legal and illegal residents of Texas to public education. The case means nothing to a discussion of birth right citizenship. The Court, properly, found under those constitutional clauses and statutes involved that have nothing to do with birth right citizenship, but that there was no difference to the right of illegal children and the right of legal children to an education. In that long opinion no allusion was made to “birth right citizenship” and the word “citizen” only appeared once in discussing equal protection under different sections of the 14th Amendment and Statutes.
I personally agree with the concept that if an alien father and mother, with birth allegiance to another nation, are here by permission (work permit) and have a child that is born within the territorial confines of the United State; and, since in such circumstances we have sovereignty over the land and the allegiance, at least temporarily of parents allowed in the country, that child’s allegiance is to the United States and the United States has jurisdiction over him or her as meant by the Constitution. Depending on the nation his parents hail from that child may also have citizenship in another country too. This is another issue as some countries claim bloodline citizenship from their citizens.
The “specific” exceptions mentioned with apparent approval in dicta in the Wong Kim Ark case were children born of foreign citizen diplomats in the United States who were citizens of and represented the interest of another country; and, children born to a foreign citizen soldier in territory of an occupying foreign army which territory formerly comprised part of the United States, even after the United States regained that territory. Neither child would be a citizen of the United States at birth for a different reason. One exception is based purely the status of the parents only; and, the other on parents and sovereignty over territory. We will skip discussing the territory issue directly as children now born in the United States of illegal aliens are born in the United States and the United States has sovereignty over all parts of this nation. Jurisdiction becomes the issue for children of illegal aliens.
But, in fact, in both exceptions the status of parents of the child played into the issue!
Why should children born of Diplomats legally invited into the country and legally residing in the country be denied citizenship when they are born here; and, I understand and agree with the exception that children of foreign citizens in a foreign occupying army born in foreign occupied territory of the United States be denied Citizenship as that child would owe allegiance at birth to the country of citizenship of the parents since they controlled the area.
An American Indian was denied birth right citizenship under this Constitutional provision because at birth his allegiance, said the court, was to an Indian Government entity. He was legally in the territorial area of the United States and his parents legally here, but the issue of “jurisdiction” ended his claim. Children of Diplomats are denied citizenship simply because of the status of their parents even though the children are born here. Their parents have no allegiance to the United States of America, therefore their children are denied citizenship.
The case acknowledges one other possible exception in dicta. It implies that citizens of another state or states may overwhelm the sovereignty of a nation so as to jeopardize it peace and dignity with their lawless ness. Never has a nation been assaulted by foreign nationals as the United States has been in the last few years. We have confusion and lawlessness because of it that appears more like an invasion. These “illegal aliens” do not submit themselves completely to the sovereignty and jurisdiction of the United States and their children born here should not have birth cizenship:
"When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.”
Illegal aliens claim more rights than legal non-citizen residents.
My argument is that parents that are “illegal aliens” and actually deny allegiance to the United States of America and have children born here should not have birth citizenship. Their claim of birth right is ridiculous when peaceful Indians and Diplomats are denied citizenship. Their parents more resemble an invading army. Their parents prove they do not submit to the jurisdiction of the United States and, in fact, refuse American Law by their acts. They defy law by breaking into the country and remaining here in the shadows and illegally receiving American benefits without submitting to the sovereignty of American Government. They are invaders as they steal and take what they want. Whatever space they may occupy is in fact occupied by a foreign citizen, but most specifically their status before birth of their child is anti-American sovereignty and illegal; and, they have refused to recognize the sovereignty or render allegiance to the United States.