A new article has been published at The American Thinker titled, “An Objective Guide to Birthright Citizenship.” The article is by Rob Natelson, described as:
senior fellow in constitutional jurisprudence at the Independence Institute in Denver and author of The Original Constitution: What It Actually Said and Meant. His research is cited frequently in Supreme Court opinions and arguments.
The American Thinker has no discussion forum, and that is why I have opened up a place to discuss the article, should anyone want to.
After reading the title, and considering the publication where it appears, I expected to see nothing even remotely approaching objectivity in the article. I didn’t find what I expected. There is bias, but it is subtle.
The question discussed in the article is whether children born to persons without legal residence in the United States become citizens. Under current policy, they are citizens and [spoiler alert] the article says that should the Supreme Court address the question of the children of non-legal residents, it would decide that they are citizens.
I have some issues with the objectivity of the article as it seems to warm up to some ideas and brush off others, for example, saying that a footnote in Plyler v. Doe (1982) was inserted by the “liberal majority” and had “little or no persuasive power.”
Probably the one thing I might take issue with is the following statement regarding why the 14th Amendment is endless fodder for discussion.
This is partly because we know less than we should about the amendment’s ratification by the state legislatures. It is partly because the amendment’s congressional drafters were not very competent. They sometimes were ignorant of existing constitutional law. They invented terms without defining them. And they ascribed meanings to terms different from established legal meanings. The phrase "subject to the jurisdiction" is a good example. We have only a few clues as to its intended meaning.
Additionally, none of the proposers discussed how the amendment would impact the children of illegal aliens – even though (contrary to modern assertion) everyone knew that such children were in the country. They were the offspring of Africans illegally imported as slaves after the ban on the slave trade (1808) and before the end of slavery (1866).
The negative assertions about the framers of the 14th Amendment are not supported by examples. My main problem is calling these illegally imported slaves “illegal aliens” because an “illegal alien” is someone who is not a legal resident of the country, and I know of no statute that prevented those slaves from residing in the country, however they got here. There were no immigration statutes in existence prior to 1866 and the situation of those slaves is not analogous to today’s non-legal residents.
The article slips in some rather subtle manipulation of opinion, but it makes some attempt to represent both sides of the discussion and in that it’s far above the usual birther nonsense.