Birthright tourism: another challenge to 14th Amendment citizenship

The United States is one of very few countries in the world to recognize as full citizens children born in the country to parents who are themselves illegally present, or who have only been admitted as temporary visitors. Most of the controversy is over the children of non-citizens who have violated U.S. immigration law to illegally enter or remain in the U.S. to live and work without authorization. As full U.S. citizens these children cannot ever be deported, are entitled to free education and social services, and when they turn 21 can sponsor their parents for legal immigration to the U.S. as “immediate relatives” of a U.S. citizen.

But with increasing frequency, the media is exposing the phenomenon of birthright tourism by which pregnant women of various foreign nationalities arrive in the U.S. on temporary tourist visas to give birth on U.S. soil, then return with their newborn U.S. citizen babies to their home countries. The children are raised abroad with little or no exposure to American society, culture or values, but are entitled at any time to return to the U.S. to live and work as citizens, and when they reach the age of 21, to sponsor their parents for legal immigration to the U.S.

According to the New York Times, organized businesses in China, Mexico, South Korea, and other countries advertise complete maternity tourism packages to the U.S. including travel, temporary housing, medical care, and insurance. The U.S. government is well aware of this practice but does not consider it to be in violation of any current U.S. law.

But as the hundreds of comments left on the New York Times website attest, many Americans do object to the practice of birthright tourism and to the broad interpretation of birthright citizenship which has been attributed to the 14th Amendment to the U.S. Constitution.

What the 14th Amendment says is, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The 14th Amendment does not say or mean that all persons born in the U.S. are citizens. There are in fact many examples of persons born in the U.S. who are not citizens under the 14th Amendment. And in each case the denial of birthright citizenship to children born in the U.S. is because of the status of the parents.

For example, the children of foreign diplomats, even if born in U.S. hospitals, are not considered citizens of the U.S. because they are not subject to the jurisdiction thereof.

Children born on U.S. soil to alien enemies in hostile occupation are not citizens for the same reason. Japan occupied two of the Aleutian Islands in Alaska during World War II. A Japanese child born there during hostile occupation would not be a U.S. citizen.

For many years after the adoption of the 14th Amendment, children born to Native American tribes were not considered U.S. citizens because of their allegiance to the sovereign tribal nations. The fact that the exception for children born to Native American tribes was later overturned by Congressional enactment suggests a role for Congress in determining the proper interpretation and application of the 14th Amendment.

Discussion of the genuine and complex legal issues and concerns surrounding the 14th Amendment should be encouraged and not arbitrarily cut off. Ultimately, we and our elected representatives must decide whether we want no restrictions on immigration and U.S. citizenship, or the alternative, enforcement of such restrictions as Congress shall prescribe.

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