JimMe wrote:
Where in the US Constitution or any Amendment does it say "... any child born to parents subject to a foreign power is not a citizen..."?!? Thr Article and Section of the US Constitution or the Amendment number will do...
I was partially right -- the 14th amendment is the pertinent one and the discussion below it shows some of the problems with any interpretations. There is considerable controversy over this clause. It is certain that children of Diplomats are not citizens, but the clause has been interpreted both ways with regard to children of non citizen parents. Illegal entry complicates the whole situation even further and will undoubtedly require a Supreme court decision and possible 14th amendment revision for clarity.
Article XIV (Amendment 14 - Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection)
1: 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Discussion:
While the Citizenship Clause was intended to define as citizens exactly those so defined in the Civil Rights Act,[3][10] which had been debated and passed in the same session of Congress only several months earlier, the clause's author, Senator Jacob M. Howard of Michigan, phrased it a little differently. In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be "not subject to any foreign power" and not "Indians not taxed", were combined into a single qualification, that they be "subject to the jurisdiction" of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.[11]
There was no recorded debate over who was encompassed by the expression "not subject to any foreign power" or whether these same people were excluded by the wording of the Citizenship Clause. Howard, when introducing the addition to the Amendment, stated that it was "the law of the land already" and that it excluded only "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers".[12] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[13][14] However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Trumbull, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth,[15][16][17] and no senator offered a contrary opinion. Trumbull even went so far as to assert that this was already true prior to the passage of the Civil Rights Act, although Senator Edgar Cowan of Pennsylvania, disagreed, stating that this was only true for the children of Caucasian immigrants.[15] Senator John Conness of California expressed support for the Amendment for giving a constitutional basis for birthright citizenship to all children born in the United States to any parentage (including Chinese noncitizen residents who do not intend to reside permanently in the United States), even though he (and others) thought it had already been guaranteed by the Act,[18] whereas Cowan opposed the Amendment (and Act), arguing that it would have the undesirable outcome of extending citizenship to the children of Chinese and Gypsy immigrants.[19]
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Indians on reservations and in U.S. territories from citizenship. Doolittle asserted, and Senators Reverdy Johnson of Maryland and Thomas A. Hendricks of Indiana concurred, that all Indians were subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable,[20] but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Indian tribes, which governed themselves and made treaties with the United States.[21][22] Moreover, they objected to the phrase "Indians not taxed" on the basis that it could be construed as making citizenship dependent on wealth and also that it would allow states to manipulate who is a citizen in their state through tax policy.[23]
Birthright citizenship
Main article: Birthright citizenship in the United States
The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli, or "right of the territory"—does not exist in most of Europe, Asia or the Middle East, although it is part of English common law[24] and is common in the Americas.
Two Supreme Court precedents were set by the cases of Elk v. Wilkins[25] and United States v. Wong Kim Ark.[3] Elk v. Wilkins established that Indian tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisdiction of the United States. Children born to these Indian tribes therefore did not automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe.[26] Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier act of Congress, and all non-citizen Indians were subsequently made citizens by the Indian Citizenship Act of 1924.
In Wong Kim Ark the Supreme Court held that, under the Fourteenth Amendment to the U.S. Constitution, a man born within the United States to foreigners (in that case, Chinese citizens) who have a permanent domicile and residence in the United States and are carrying on business in the United States[3] and who were not employed in a diplomatic or other official capacity by a foreign power, was a citizen of the United States.
A 2010 Congressional Research Service report, however, observed that, though it could be argued that Congress has no power to define "subject to the jurisdiction" and the terms of citizenship in a manner contrary to the Supreme Court's understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, since Congress does have broad power to pass necessary and proper legislation to regulate immigration and naturalization under the Constitution, Art. I, § 8, cls. 4 & 18 of the constitution Congress arguably has the power to define "subject to the jurisdiction thereof" for the purpose of regulating immigration.[27]