Somehow, with the dismissal of Kerchner v. Obama and the retirement of Leo Donofrio (yet again), it rather feels like the debate over the attempts to redefine “natural born citizen” have fallen off the radar, leaving Obama Conspiracy fans with little more than the Taitz/Smith/Lincoln soap 0pera for entertainment.
However, before closing the box and taping it shut, I wanted to mention something in more detail that has been briefly mentioned before, and that is the 1995 testimony before Congress of assistant attorney general Walter Dellinger. The preceding link will take the interested reader to the full text. I’ll include a substantive citation here.
Because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution. A bill … that purports to deny citizenship by birth to persons born within the jurisdiction of this country is unconstitutional on its face. Second, … constitutional amendments on this topic conflict with basic constitutional principles. To adopt such an amendment would not be technically unlawful, but it would flatly contradict our constitutional history and our constitutional traditions. Affirming the citizenship of African-Americans that Dred Scott had denied, in 1862 President Abraham Lincoln’s attorney general wrote an opinion for the secretary of the treasury asserting “[a]s far as I know … you and I have no better title to the citizenship which we enjoy than the ‘accident of birth’–”the fact that we happened to be born in the United States.” Today, in 1995, we cannot and should not try to solve the difficult problems illegal immigration poses by denying citizenship to persons whose claim to be recognized as Americans rests on the same constitutional footing as that of any natural-born citizen….
The Fourteenth Amendment declares that “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.” The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants.
The phrase “subject to the jurisdiction thereof” was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes. Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and attorneys general for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark, there is no question that they possess constitutional citizenship under the Fourteenth Amendment….
While the Constitution recognized citizens of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by common law. And the common law conferred citizenship upon all persons within the territory of the United States, whether children of citizens or aliens. The only common law exceptions to this generally applicable rule of jus soli were children born under three circumstances –” to foreign diplomats, on foreign ships, and to hostile occupying forces –” which, under principles of international law, were deemed not be be within the sovereignty of the territory….
The Civil Rights Act of 1866 provides that “[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” During the debates on the Act, the Chair of the House Judiciary Committee stated that the provision defining citizenship is “merely declaratory of what the law now is,” and he cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: “Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”…
The Court [in US v. Wong Kim Ark], in a detailed review of the Anglo-American common law of citizenship and the legislative history of the Fourteenth Amendment, established several propositions. First, because the Constitution does not define United States citizenship, it must be interpreted in light of the common law. Under the common law of England, which was adopted by the United States, every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel….
…More recently, the Supreme Court noted in Afroyim v. Rusk that the framers of the Fourteenth Amendment “wanted to put citizenship beyond the power of any governmental unit to destroy.” See also Rogers v. Bellei, 401 U.S. at 835 (recognizing that “Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,'” where that citizenship is attained by birth). By excluding certain categories of native-born persons from U.S. citizenship, … legislation [to deny birthright citizenship to illegal immigrants] impermissibly rescinds citizenship rights that are guaranteed to those persons by the citizenship clause of the Fourteenth Amendment. Such a rescission of constitutionally protected rights is beyond Congress’ authority.