by Dr. Thomas Patterson | Jan 31, 2025 | Opinion
By Dr. Thomas Patterson |
The Left has done a great job of influencing the issue of birthright citizenship. Most Americans oppose granting automatic citizenship to children born to illegal immigrants, but they also believe that we’re stuck with this policy.
They’re told repeatedly that the practice is enshrined in the Constitution’s 14th Amendment, that it has been affirmed by the Supreme Court, that the jurisprudence around it is settled law, and that challenging the matter now is unconstitutional and disloyal.
None of that happens to be true, but in the meantime, we’re saddled with a logically incoherent immigration system. Yes, immigrants are central to America’s story. But immigration law must be dedicated to the common good, not the benefit of those willing to flout our laws.
Immigrants should be vetted to ensure that they are likely to assimilate and be of value to their adopted country. Instead, we incentivize illegal immigrant mothers to cross the border before birth so their offspring can be entitled to lifelong citizenship.
So, did the writers of the 14th amendment botch the job, subjecting their descendants to such a dysfunctional system? No. In language more commonly understood at the time, they plainly stated, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein in they reside.”
The 14th amendment was written in 1868 to clarify that the newly emancipated slaves were granted all the privileges and rights of citizenship. There is nothing in the historical record to suggest that the authors had the slightest intent to grant citizenship to all born on American soil, much less those with parents living here illegally. The jurisdiction language was added specifically to prevent such an interpretation.
Advocates of constitutional originalism should also note that the author, Senator Jacob Howard of Michigan, explained it was meant to describe “a full and complete jurisdiction, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
He clearly is not describing an illegal alien. Senator Lyman Trumbull, an influential supporter of the amendment, also emphasized “jurisdiction meant not giving allegiance to anyone else.”
The legal scholar Lino Graglia points out that, as the authors would have understood it, those who are born to parents legally in the US “are subject to the jurisdiction there of and so would have constitutional claim to birthright citizenship.” Just as plain is the fact the 14th Amendment, as written, would not apply to those born to illegal aliens, soldiers posted in a foreign country, or foreign diplomats.
Birthright advocates claim that the 1897 Supreme Court case of Wong Kim Ark clinches their claim that children of illegal immigrants born here are entitled to the full citizenship. Wong had traveled back to China with his parents and was unjustifiably denied reentry until the decision was overturned by the Court. They ruled that to bar Wong would be “to deny citizenship to thousands of persons of [European] parentage who have always been considered and treated as citizens of the United States.”
That makes sense, since Wong had the necessary documentation and his parents had been on American soil legally at the time of his birth, there being no laws defining them otherwise at the time. This is exactly the reason why this much ballyhooed ruling does not apply to the practice of granting citizenship to the children of illegal aliens. In fact, the Supreme Court has never opined on the question.
The clear intent of the amendment, the language, and the historical record are all in accord. Yet the 14th Amendment has been completely untethered from its original meaning and impact. The Left and the Democratic Party have taken something meant to right a wrong and manipulated it to the advantage of those entering the country illegally.
There are at least 5 million children in America who have received citizenship inappropriately, or about one in eight U.S. births. That works well for those who relentlessly seek ways to produce millions of future Democrats.
The rest of us should continue to respect our Constitution and our history. The incredible privilege of citizenship should go only to those who merit it.
Dr. Thomas Patterson, former Chairman of the Goldwater Institute, is a retired emergency physician. He served as an Arizona State senator for 10 years in the 1990s, and as Majority Leader from 93-96. He is the author of Arizona’s original charter schools bill.
by Dean Riesen | Mar 27, 2024 | Opinion
By Dean Riesen (The Center Square) |
As a border state, Arizona has confronted the consequences of illegal immigration for decades. A not-often-discussed constitutional loophole is making this challenge perpetually harder to resolve.
Counting illegal aliens as citizens, as outlined in the 14th Amendment, leads to the over-allocation of seats to the dominant party in districts with large illegal populations. Democrats benefit from this, which may be why they don’t seem interested in solving the border crisis.
To analyze this, we can examine the districts where there is a high concentration of illegal immigrants and compare the number of registered voters in those districts to the ones where there are very few illegal immigrants. The districts with more illegal immigrants will likely have a significantly lower number of total voters compared to the ones with fewer illegal immigrants.
This is covered in detail in Howard Husock’s Citizenship and Congressional Districting in National Affairs-Fall 2023. He shows how congressional district voting totals vary widely for districts that are supposed to be equal, as in equal representation but aren’t.
In the 2022 Congressional Election, Jim Jordan’s Ohio 4th District had 290,156 votes, with 69.2% in his favor, while Alexandria Ocasio-Cortez’s New York 14th District had 118,062 votes, with 70.6% supporting her. Interestingly, Jordan’s district had 146% more votes cast than AOC’s, despite being equal in size. It’s interesting to note that Jordan’s district is 99.1% U.S. citizens, and AOC’s is only 76.4% U.S. citizens (source: Data USA).
How is this possible? Due to the drafting of both the U.S. Constitution and the 14th Amendment, the courts have determined that for the apportionment of the U.S. House of Representatives, we must count all the “persons” residing in a state. The drafters likely had no idea that their words would be used to give political power to individuals who are not citizens and, in many cases, are breaking the law by even being in the U.S. Nothing short of a constitutional amendment will solve this problem on a federal level.
What about the states?
Arizona may adopt counting resident U.S. citizens for apportioning districts for state offices. Most states count all persons for apportioning state legislatures, including illegal immigrants, which can significantly affect seat allocation. By counting only residents of the U.S., Arizona could have a more accurate representation.
In the 2022 Arizona State Senate election, Republicans won 17 out of 32 districts, while Democrats won 15. If the theory is correct, Democrat districts should average a significantly lower number of total votes than Republican districts because most illegal aliens tend to live in Democrat majority districts. They are counted in the census, even though they are not U.S. citizens, and therefore, they are counted for purposes of apportionment.
In fact, the differences in voting population have been proven. The Democrat-winning districts have an average number of voters of 54,310, with a range of 25,626-123,321 total voters. The Republican-winning districts have an average total number of voters of 91,260, with a range of 59,471 to 133,510 total voters. The overall average total number of voters in a state senate district is 78,123. The average Republican-won district’s total number of votes is 68% greater than the average Democrat-won district’s total number of votes. These figures are prima facie proof of the theory.
Two U.S. Supreme Court decisions are of particular interest to state reapportionment. In 2016, the court decided Evenwel v. Abbott, which found a state (Texas) could not be forced to use a method, in this case voter-eligible population, to apportion its state legislative seats. The court ruled that the total population of persons was an acceptable method as it is the same method used by the U.S. House of Representatives and certainly met the court’s one-person, one-vote standard articulated in Reynolds v. Simms (1964).
In the Evenwel case, the plaintiffs failed to prove that the state’s method of counting the total population of persons violated the one person, one vote principle. The court clarified that the total population of persons was not the only basis for apportionment. Justice Ginsburg’s opinion indicated that it may not be the only method the court would accept for state legislative apportionment. Justice Alito’s concurrence vehemently disagreed with the Solicitor General’s argument that state legislative districts must be equal in total population, even if it resulted in grossly unequal districts in the number of eligible voters, particularly because of the illegal alien concentration in certain parts of the state. Alito called it a meretricious argument, “apparently attractive but having in reality no value or integrity-according to Oxford Languages.”
In 1966, the Court decided in Burns v. Richardson that Hawaii’s apportionment based on registered voters was valid. The state used registered voters because of the large number of tourists and non-resident military members. The Court clarified that the equal protection clause doesn’t require using total population figures from the census. It suggested that in Hawaii’s case, the state-resident U.S. citizen population would be more appropriate. While the court allowed the use of registered voters, it indicated that state citizen population was the best method. The court also noted that the distribution of registered voters approximates the distribution of state citizens or another permissible population base.
Arizona may change its constitution to use the US resident population for apportionment in state offices. Other states should consider doing the same.
Originally published by The Center Square.
Dean is Chairman of the Arizona Free Enterprise Club.
