Under American law, a person can become a “natural born citizen” and be eligible to be president by one of two legal principles: “Jus Soli” – right of the place; and “Jus Sanguinis” – right of blood. Citizenship is gained at birth.
Jus soli comes from a 1608 court decision in England, Calvin’s Case, which stated that anyone born in a territory subject to the king’s control would be a British citizen and: (1) owe allegiance to the king; and (2) have the right of protection guaranteed by the king. This became common law in the American colonies and is referred to as “birthright citizenship.”
Birthright citizenship made America great when colonists from Holland, France, and Germany began coming to the American colonies around 1640. The children of these foreign colonists became British subjects, with the same rights and responsibilities as the children of British immigrants. Everyone born in British colonies had equal rights. This was not true of children born in the Spanish colonies.
Jus sanguinis comes from Roman law. A child of Roman parents was considered a Roman citizen no matter where in the world the child was born. The Apostle Paul was a Roman citizen and could travel freely throughout the Roman empire because of his citizenship. Most countries grant citizenship to children born to their citizens residing in foreign countries. Therefore, it is common to have dual citizen children in countries that offer birthright citizenship.
Before the Civil War, citizenship was determined by the states. The Civil Rights Act of 1866 granted birthright citizenship and was intended to prevent Southern states from denying the rights of citizenship to blacks. However, this law conflicted with the Dred Scott Supreme Court decision, which stated that blacks were not citizens and could never be citizens. The 14th Amendment, adopted in 1868, put birthright citizenship in the Constitution.
The 14th Amendment states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” People who want to end birthright citizenship argue that the phrase “subject to the jurisdiction thereof” does not apply to those not here legally.
Immigration officials recognize the citizenship of all children born in the United States (except for diplomats). While working as an immigration inspector in El Paso, I learned that we also allow Mexican citizens to cross the border for the specific purpose of having a baby born in an American hospital, if the hospital bill is paid in advance. I encountered many such women rushing to the hospital to give birth. I inspected them as quickly as possible since I didn’t want the baby to come while I was asking questions. These children of Mexican parents obtained American birth certificates and are U.S citizens.
The term “subject to the jurisdiction thereof” is subject to definition by the courts. In 1898 the Supreme Court ruled that Wong Kim Ark, born to Chinese parents temporarily visiting in the United States, was an American citizen. The court has not ruled on the citizenship of children born to parents who are not here legally. This is because immigration officials consider such children to be citizens.
Some congressmen want to pass a law doing away with birthright citizenship. Such a law would have to go to the courts for a ruling on jurisdiction.
I believe that foreigners not legally present in the United States are subject to the jurisdiction of the United States. Unlike diplomats, they can be given parking tickets, a privilege that many diplomats abuse. They can be arrested for crimes and they pay taxes. The pay sales tax, and they indirectly pay property taxes when they pay rent. Today, almost everyone is paid by check, because of employer sanctions. Therefore, we pay income taxes and Social Security. Some may work with a counterfeit document, but taxes are withheld. Social Security will count income earned using a different name if the name and false number can now be identified with someone legally present.
As an immigration officer, I liked birthright citizenship because it was easy to determine citizenship. Without it, all children born in America would have to produce proof of their parents’ citizenship or legal immigration status. In some cases, we would need to determine if the parents had been citizens, or legal residents, long enough to pass on citizenship. Imagine the outrage of a citizen parent who might be required to pay $1,170 to get a certificate of citizenship to enroll a child in school.
Don Riding of Fresno was in charge of the Citizenship and Immigration Services office in Fresno from 1984 to 2011, when he retired. During that time, he signed thousands of arrest warrants and presided over the naturalization of 300,000 new citizens.