The Challenge Facing America: birthright citizenship

Published on July 25th, 2008

Birthright Citizenship & Allegiance to America: Former Chapman University School of Law Dean Dr. John Eastman explains why the 14th Amendment does not give the children of illegal immigrants–or legal tourists for that matter–automatic citizenship at birth. Dr. Eastman outlines three potential methods to correct the crisis and encourages you to study up on the issue and then call your congressional representative.

Transcript of John Eastman video presentation on birthright citizenship:

Hello, my name is John Eastman. I’m the Dean of Chapman University School of Law. I’d like to share with you today a few thoughts about birthright citizenship.

You know, many people today think if you’re just born on U.S. soil that makes you a citizen, but that’s not quite what our Constitution says. It says all persons born or naturalized in the United States (that’s the born on the soil part) and subject to the jurisdiction thereof are citizens.

And it’s that “subject to the jurisdiction” clause that most people overlook. It means that you’re owing allegiance to this country; that you’ve become part of our system of government. You recognize the importance of the rule of law and consent of the governed. 

And the children of people who are here just temporarily, whether legally or illegally, don’t meet that requirement for mandatory and automatic citizenship. You have lots of people here legally for example who are visiting from other countries just as tourists. You have people who come here as students on student visas. 

Their children born on U.S. soil, that doesn’t mean that they are also subject to the jurisdiction of the United States in this broader owing- allegiance sense. Of course they have to comply with our laws while they’re here, but they’re not “subject to the jurisdiction” in the sense that the 14th Amendment intended. 

And of course people who are here illegally, whether they’ve overstayed their visa or come here without a visa/without legal permission at all, have never become subject to the jurisdiction in this broader sense. And therefore, mandatory automatic citizenship just simply doesn’t apply to their children as a matter of constitutional law. 

So the real question for us is what remedies can we have to get back to this original understanding of birthright citizenship? 

Well, some people say we should have a constitutional amendment. Of course that’s a little bit redundant. If my understanding of the Constitution is correct, all we need is to remind people what the Constitution actually says. It wouldn’t need an amendment. 

So the route I actually prefer is for members of Congress to pass a statute defining what their understanding of the Constitution’s mandatory automatic citizenship requirement is; extending additional citizenship offers to beyond that as they think is important for policy reasons, and then giving a bit of fast track to the courts to decide whether that act of Congress is correct or not. 

A third mechanism would be if some city, someplace in the country, decided not to recognize the citizenship of children born to parents who are here illegally. And I believe the cities could do that. Of course it would probably provoke a legal challenge fairly quickly, and then we could try that case in the federal courts, the district court, the courts of appeals, and ultimately the Supreme Court weighing in on whether that litigation or that statute or ordinance of the local city is consistent with the birthright citizenship clause of the 14th Amendment. 

You know some people may ask, “Why bother? We’ve had birthright citizenship as an understanding, even if it’s erroneous, for about a half a century. Why bother going back and trying to recapture the original understanding?” 

Well, there are a couple of reasons. There are between 12 and 20 million illegal immigrants in this country right now. One of the draws for them to come here has been this erroneous notion of birthright citizenship, and that’s created huge problems. The problems at the southern border with coyotes and the way people are treated are legion. 

There’s a whole industry in Los Angeles called birth tourism, where people come to this country specifically for the purpose of giving birth to children on U.S. soil. And that has made them all too frequently the prey of some of the most heinous kinds of human trafficking of people in the world in our history. 

We shouldn’t tolerate that ever and to the extent our policies are encouraging that or inducing people to do that; those policies need to be revisited very quickly. 

But there’s an even more important issue. One of the reasons the founders of our Constitution gave the power to Congress to decide how much immigration to have at any given time was because they understood how important it is in a government like ours, which is an experiment in self- government, that people come here in numbers that don’t overwhelm those that are used to governing themselves. 

When you have whole groups of people come all at once from countries that are tyrannical; where they’ve learned to live in despotism, they come here without an appreciation of the rule of law or the capacity for self-government. And to the extent those numbers are huge,they could overwhelm our institutions and threaten this experiment in self government that has served us so well for over two centuries now. 

So what can you do to help with this effort to recover the original understanding of the Constitution and its citizenship clause? 

Well, one thing you can do is contact your member of Congress. Let him or her know that you’ve read the 14th Amendment’s citizenship clause and you recognize that it’s not just birth on U.S. soil alone but “subject to the jurisdiction” is also required for this automatic citizenship. And that means more than just subject to the traffic laws of our country. It means owing allegiance to our country; being part of our body politic and our system of government. 

Illegal immigrants just don’t meet that criteria. They don’t owe that allegiance to our country. In fact, they owe allegiance to a foreign sovereign. 

So let your member of Congress know that you’ve read those clauses. Urge them to read them as well, and urge them to get behind and support legislation that would help clarify what our Constitution actually requires on birthright citizenship. And you can do that today!

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