Friday, July 17, 2009

So much for strict construction of the Constitution.

Photo used under Creative Commons from Thorne Enterprises.

The Council on Foreign Relations issued Independent Task Force Report No. 63, U.S. Immigration Policy. I recommend that you purchase and read it as it has many well developed ideas and proposals for fixing the current system. On page 115, Task Force Member Robert C. Bonner, submitted an additional view where he states, "I believe as a policy matter the United States should not extend citizenship to children born in our country to parents who are here illegally. The current practice invites illegal immigration, promotes public cynicism, and is often the only basis for the cry of family separation when parents are deported." Mr. Bonner goes on to say that this "practice could probably be changed by Congress (I would not make it retroactive) without a constitutional amendment, but I would favor such an amendment if absolutely necessary."

I must disagree with Mr. Bonner. The Fourteenth Amendment to the United States Constitution states in part, "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." (emphasis added). The Supreme Court since at least 1898 has held that this language means that children born in the United States are citizens irrespective of their parents' nationality. Other cases have also held that children born to diplomats are not "subject to the jurisdiction thereof" and thus not citizens. The 111 year -old interpretation of the United States Constitution is not a "practice." It is the Supreme Law of the Land. Any changes to it, therefore, need to be in the form of a constitutional amendment.

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