‘Birthright citizenship’: The urban legend that won’t quit

Some urban legends never die, and the “birth citizenship” one is perhaps one of the most intractable. No amount of scholarly and constitutional legal opinion has thus far been able to dislodge it. 

To foster the legend, the screaming heads on TV talk shows are fond of citing only the first half of the Fourteenth Amendment Clause providing “All persons born…” but almost always omitting the qualifying phrase that limits birth citizenship to those already “subject to the jurisdiction of the U.S.”; and even those who do refer to it dismiss the phrase as either meaningless, or referring to some vague notion of some geographic line in the sky. As any first-year law student can tell you, jurisdiction has a far broader meaning than that a foreign tourist can be liable for a traffic ticket if he parks his rental car in a no parking zone. A citizen of Germany and under its jurisdiction does not immunize himself from his duties, tax obligations and responsibilities to his country by the simple expedient of making a weekend trip to New York City.            

{mosads}In fact, the drafters of the Fourteenth Amendment, Sens Lyman Trumbull and Jacob Howard, were so concerned about the birthright clause being misinterpreted and distorted (a fear now apparently fully realized), that Trumball felt it necessary to make it unmistakably clear about the meaning of the qualifying phrase, insisting that the it be inserted so that the clause could would never be understood to include “persons born in the U.S., who were foreigners, aliens…”  Every school student today, of course, knows that the purpose of the provision was to ensure citizenship for African Americans and freed slaves in the U.S.            

Alas, no amount of clarification and specificity set forth in the legislative history of the Fourteenth Amendment has to date been sufficient to deter the amateur constitutional “experts” on the talk shows, who are too willing to defer to the likes of such conservative publications as the Wall Street Journal, always eager to support a position that will ensure the continued flow of cheap labor to enhance big business profits and keep wages low.            

But, in fact, scholarly and judicial opinion is hardly necessary to debunk the legend, given that the absurdity of the birthright urban legend can be clearly seen when one considers even a few of its most bizarre implications. Under this legend, if a German woman on a plane flying from Frankfurt to Japan gives premature birth while the plane is flying over the geographic territory of the U.S., her child becomes a U.S. citizen whether she wants the baby to be or not. If a tourist from Somalia takes a weekend trip to New York and gives premature birth there, her child immediately becomes a U.S. citizen, with all the duties and responsibilities of U.S. citizenship. If one of the women cooks accompanying the Japanese military invasion of Attu in Alaska during World War II has a child on Attu, her child is a U.S. citizen—even against her will!             

Psychologists often suggest role reversal to help patients recognize the absurdity of their position: how would any American woman feel if she gave premature birth to a child on a plane that overflew Somalia while taking a flight from New York to Peking, and then being told by the Somalian government that her child was a Somali citizen and subject to the draft in that country?            

Absurd? 

Of course it is. And that is the reason that virtually no other country in the world has adopted the precepts of this uniquely fantastical urban legend, and why the U.S. has become a laughing stock for claiming to adhere to it.   

When pressed on what the actual legal authority might be for the birthright legend, the best that the talking heads can usually muster it to parrot the case of Wong Kim Ark (an old nineteenth century case of the same vintage as Plessy v. Ferguson, in which the Supreme Court held that racial segregation on public transportation was not a violation of the Fourteenth Amendment). But the problem with that case is not its age, but its holding, which simply confirmed the obvious fact that a child born to a legal resident of the U.S. is a citizen. How the talking heads came up with this case to support the theory of birth citizenship for those born to foreign  tourists, invaders, or illegal aliens remains a true puzzler. Plyer v. Doe, also mindlessly thrown out by amateur prognosticators is even more baffling, since that case had nothing to do with birth citizenship. 

Nor does it seem that any amount of scholarly analysis and input can dislodge this intractable legend. Yale Law Professor Peter Schuck has written extensively in both books and articles to debunk the legend in his book “Citizenship Without Consent,” as has Yale political Science professor Rogers M. Smith, who clearly concludes that “the offspring of illegal aliens are not entitled to birthright citizenship.”  They note that “even the citizenship of the UK (on which ours is based) does not extend it to the children of …illegal aliens. The same is true of other Western European countries.” 

There might be some valid basis for extending birth citizenship to illegal aliens—increasing corporate profits by keeping wages low, for example—but the Constitution is clearly not one of them. If the apologists for the legend are determined to give the legend legal life. However, there is always the amendment process available to them—getting a two-thirds majority in the Congress to vote for it, and three quarters of the states. 

As long as the man in the street listens to the talking TV heads rather than constitutional scholars, however, the legend, even without an iota of legal precedent— much less of logic or rationality— is likely to prevail in the same way as such conspiracy theories as that the U.S. never landed on the moon remain equally intractable.  

Hardaway is a professor of civil procedure, evidence and preventive law in the Sturm College of Law at the University of Denver.