Generally, George Will is the sharpest, clearest thinking and most insightful conservative political commentator going. So I was really confused by THIS COLUMN, which seemed pretty reasonable on the face but just didn’t quite make sense to me. Basically, he was arguing that birthright citizenship for US born children of illegal immigrants is NOT guaranteed by the 14th Amendment to the US Constitution, as is usually presumed. So I went to someone who I figured could break this down. Thus, a Mr Rastus P Placebo writes:
In Questioning “Birthright Citizenship”, George Will Is Playing With Fire
Regarding his column about “Birthright Citizenship”: George Will is trying very, very hard to make a “loophole” that DOES NOT EXIST. May I point out?: If you are ON U.S. soil, AND you are NOT a diplomat from a foreign nation, then YOU ARE “SUBJECT TO THE JURISDICTION” OF THE UNITED STATES. The phrase “subject to the jurisdiction” means simply, that you are required to obey the laws of the U.S. The reason a baby born to a foreign diplomat is “not subject to the jurisdiction” of the U.S. is because a foreign embassy is not considered to be under U.S. jurisdiction. Hence the term, “diplomatic immunity”. Not being “subject to jurisdiction” is why diplomats at the U.N. in New York can LAUGH at parking tickets when they illegally park anywhere around the city: They have “diplomatic immunity”. They can’t even be arrested for suspected felonies, without approval of their governments. A baby born inside a foreign embassy in Washington D.C. is not necessarily a U.S. citizen.
If the authors of the 14th amendment intended what Will seems to think they were implying, they would have simply said, something like, ‘Any person born here who is NOT also a CITIZEN of a foreign nation’, etc.. . . Since, for example, it is probably true that the Mexican government recognizes the U.S. born children of illegal immigrants from Mexico as Mexican citizens, then such language would give grounds to deny U.S. Birthright citizenship to the U.S. born children of illegal immigrants from Mexico.
Then there’s the problem: What if only ONE parent is here illegally? Another problem: When the child turns 18, shall we “deport” him or her to the country that his or her parents originated, even if the child has never set foot outside of U.S. territory, and perhaps doesn’t even speak the language?
May I point out?: Illegal immigrants do not have “diplomatic immunity”, and when an illegal immigrant is brought before an immigration judge, and ordered to be deported, it is because the immigrant *IS* subject to U.S. law. The phrase, “is subject to U.S. law” means that you are required to obey it. Does Will wish to grant “diplomatic immunity” to all currently illegal immigrants? If not, then they are surely subject to U.S. laws while in this country; as is the child born here. Therefore, that child IS A U.S. CITIZEN. End of story. The Constitution could not possibly be more clear.
Will neglects to point out that the purpose of the 14th Amendment’s “birthright citizenship” was to protect the freed slaves from having their citizenship rights “modified” and “conditioned” by the former Confederate States. In essence, the 14th Amendment can be read as saying, “There’s no such thing as 2nd-Class ‘Citizenship’”. (The “Jim Crow” laws were in essence, saying that blacks were “2nd Class citizens”).
By using Will’s (mis)reading of the passage, a Racist Congress a hundred years ago could have arbitrarily declared that blacks were NO LONGER “subject to the jurisdiction” of the U.S., and could have started deporting them out of the country.
Talk about finding a loophole! Why didn’t Segregationists 50 or 100 years ago attempt to use such a “loophole”, and try to get Congress to declare that Blacks were “no longer subject to the jurisdiction” of U.S. law? Why didn’t Roosevelt in WWII declare that U.S. born Japanese-Americans were “no longer subject to the jurisdiction” of U.S. law; then use that “loophole” to strip them of citizenship? [The "equality of rights under the law" assured by the 14th amendment applies to CITIZENS]. The legal “game” would be: The U.S. government officially, and against your will, withdraws their “jurisdiction” over you. You are now granted a kind of “diplomatic immunity”-since you are no longer “subject to the jurisdiction” of the U.S. But guess what? “Diplomats” can be expelled from the country, when they are no longer welcome!!!
Will is playing with fire. Letting Congress get to “define” who can and who cannot be a NATURAL-BORN citizen will ultimately lead to all kinds of bizarre outcomes. It may seem crazy, but from Will’s interpretation, all a Federal Judge would need to do, if Congress so authorized, would be to declare that ANY PERSON WHO IS UNDESIRABLE, including George Will himself, is “no longer subject to the jurisdiction of the United States”-and then, despite having been born on U.S. soil, strip him of his citizenship, and escort him to the nearest border.
THAT is the reductio ad absurdum of Will’s misuse of a phrase “subject to the jurisdiction thereof”, which was meant to exclude those with diplomatic immunity. Besides: If a child born within the U.S. has never been outside U.S. borders, then “subject to the jurisdiction” of a foreign power means that, hypothetically, a child could be born here to illegal immigrants from Mexico, and then the CHILD, upon reaching age 18, and having never stepped foot outside U.S. territory, could get a letter from “his” government in Mexico City, ORDERING him to “return home”.
Sound absurd? If so, then why? Isn’t it because this now-adult child of illegal immigrants “is NOT subject to the jurisdiction” of Mexican law?
And then: What if the immigration was legal under U.S. law, but NOT legal or authorized under the laws of the country of origin? Think of Cuban refugees, for example. Or any immigrant given political asylum. The country of origin may CLAIM that they and any child born here “are still subject to THEIR jurisdiction”. What if an International Court, ruling under an International Treaty which was ratified by the U.S. Senate, declared that all persons born to Cuban refugees “are subject to Cuban law”? Do they now no longer have U.S. birthright citizenship?
Will is attempting to do what he accuses liberals all the time of doing: He doesn’t like an aspect of the U.S. Constitution, although the language is clear and straightforward, so he attempts to find a “loophole” to avoid the plain language. If you’re born here, you are a citizen. Indeed, Will’s reading of the 14th Amendment is more torturous than McCain & Feingold’s reading of the First Amendment.