by Margaret Stock

Margaret Stock is an attorney in Anchorage, Alaska; a Lieutenant Colonel in the Military Police Corps, U.S. Army Reserve; and an Associate Professor in the Department of Social Sciences at the U.S. Military Academy, West Point, New York. The opinions expressed in this report are the author's and do not necessarily represent the opinions of the U.S. Military Academy, the Department of the Army, the Department of Defense, or any other government agency.

Concern with immigration issues has focused new attention on the United States Constitution’s Fourteenth Amendment, which provides that anyone born within the borders of the United States, and “subject to the jurisdiction thereof,” is an American citizen at birth.  Some believe that the 14^th Amendment should be interpreted to deny birthright citizenship to children whose parents are not US citizens or lawful permanent residents at the time of their birth. 

Proponents of such a change argue that Yasser Hamdi, a dual American and Saudi Arabian citizen who was captured on the battlefield, should not have been a birthright citizen, as he left the United States as a toddler after his birth in Louisiana and never returned until he came back as a US prisoner. They also say that the children of illegal immigrants should not be US citizens at birth.  Yet the Fourteenth Amendment has long been understood to exclude from US citizenship only three categories of persons born in the United States: (1) children of diplomats with diplomatic immunity from US laws; (2) children born to foreign military personnel who are part of an invading army, which would also be generally immune to domestic US law; and (3) children of sovereign Indian tribes that are also not subject to US laws.  (American Indians today are US citizens because of a statute, not because of the Fourteenth Amendment.)  Were the longstanding interpretation of the Fourteenth Amendment changed, many more people than just Yasser Hamdi would lose their claim to birthright citizenship.  Famous Americans such as US Senator Pete Domenici (the child of an illegal Italian immigrant) and Louisiana Governor-Elect Bobby Jindal (born to a foreigner in the US on a student visa) would not be US citizens at birth under the proposed, new interpretation of the Fourteenth Amendment.

Even if one accepts that a foreigner in the United States only temporarily or illegally is not “subject to the jurisdiction” of the United States—an interpretation that the Departments of Justice and Homeland Security would dispute, as it might deprive them of authority to prosecute and expel such persons—the policy implications of changing the current interpretation of the Fourteenth Amendment are significant.  Without the current, simple interpretation of the Fourteenth Amendment, the government would have to adjudicate the citizenship status of every child born within US borders based on the exceedingly complex rules of derivative citizenship, or citizenship by blood.  Currently, DHS takes more than a year to make such determinations, and the process is expensive and fraught with error.  As a result of the law’s complexity, DHS often takes into custody and attempts to deport many derivative citizens on the mistaken notion that they are foreigners.  DHS keeps no statistical records on how many citizens it has erroneously tried to deport, but news accounts indicate that the numbers are substantial.  A new interpretation of the Fourteenth Amendment will increase these numbers substantially.  Thus, changing the longstanding interpretation of the Fourteenth Amendment may in the end only benefit immigration lawyers, while adding yet another layer of complexity to the lives of ordinary Americans who seek driver’s licenses, passports, mortgage loans, or even the opportunity to vote in the next state or federal election.