Why Birthright Citizenship Is So Simple
“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.”
This phrase (particularly “subject to the jurisdiction of”) is at the heart of the controversy of birthright citizenship. Unfortunately, for people who want to end birthright citizenship, U.S. law presents quite a conundrum.
If illegal immigrants are not subject to jurisdiction of US laws (when they are physically within the US), which court has the right to hear their case? What judge has the authority to deport them? If you agree that a US judge has the authority to deport an immigrant, then they are subject to US laws, and by definition are “subject to our jurisdiction”. Otherwise, you are selectively denying certain rights (citizenship) while applying others (due process).
150 years of case law support the position that the 14th amendment of the constitution applies to aliens (a term no longer in use in California), whether illegal or not. The rights enumerated in the US constitution apply to persons, not just citizens. Accordingly, courts have ruled that the Bill of Rights extends to persons within the US, not just citizens.
This means aliens receive treatment very similar to the treatment that U.S. citizens receive in the context of the judicial system. For instance, the Fifth and Fourteenth Amendments of the United States Constitution apply to aliens residing within the United States. As such, the courts guarantee aliens the right to due process of law and equal protection of the laws. Courts have generally construed the Fourth Amendment as applicable to aliens as well.
Yick Wo v. Hopkins (1886)
Concerning the rights of Chinese immigrants, the Court ruled that the 14th Amendment’s statement, “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” applied to all persons “without regard to any differences of race, of color, or of nationality,” and to “an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here.”
Birthright citizenship is only controversial to those who don’t know the law. The irony is without it, Marco Rubio and Bobby Jindal would not be able to run for President opposing it. Besides, birthright citizenship has given this country one of the greatest Americans of the 20th century.