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Illegal Aliens and the 14th Amendment

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By Gary Minor, Criminal Justice faculty at American Military University

With a new presidential election on the horizon, there is a growing group of candidates vying for the nation’s leading office. One of the main issues of discussion is the problem with illegal aliens, specifically those from Mexico. Some candidates would order deportation of all aliens and others would abolish citizenship rights for children born of illegal aliens. Based on these proposals, it seems that these candidates have little working knowledge of immigration law.

How a Person Gains Citizenship
There are two basic methods for a person to gain citizenship:

  • Jus sanguinis, which means right of blood
  • Jus soli, which means right of soil

The United States and Canada abide by jus soli, which means individuals gain citizenship based on the jurisdiction where they were born. This is reflected in the 14th Amendment, which states in part:

Section 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.

In addition, the U.S. Congress passed the Civil Rights Act of 1866, which mirrors the 14th Amendment. The Immigration Act, 8 USC 1401 states in part that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

US Supreme CourtThe United States Supreme Court has never ruled on the validity of citizenship for children born of illegal aliens. The court has, however, ruled on the 14th Amendment’s citizenship clause. In the matter of United States v. Wong Kim Ark, 169 US 649 (1898), the court held that:

A child born in the United States of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the 14th Amendment of the Constitution.

It was the clear intent of the14th Amendment to grant U.S. citizenship based on the objective measure of U.S. birth rather than subjective political or public opinion. Here are some important cases to consider:

  • In the case In re Look Tin Sing, D., Cal (1884) the federal district court held that a person born within the United States of Chinese parents, residing in the U.S. and and not engaged in any diplomatic or official capacity under the Emperor of China, is a citizen of the United States.
  • In the case of Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that loss of American citizenship constitutes cruel and unusual punishment. The petitioner in this case, a native-born American, was declared to have lost his United States citizenship by reason of his conviction by court-martial for wartime desertion. The court held that denationalization is a form of punishment and is barred by the 8th Amendment.

As presidential nominees use the issue of immigration and citizenship as political rhetoric to gain support for their campaigns, the reality is that such decisions are made by the nation’s highest courts, not politicians. Existing court decisions and the structure of the Constitution confirm that children born in the U.S. to illegal aliens are U.S. citizens. Similarly, children of illegal aliens cannot be denationalized. Unless there is a major shift in Supreme Court decisions, politicians should turn their attention and rhetoric to topics and issues that they may actually be able to change.

Gary MinorAbout the Author: Gary Minor completed his bachelor’s degree in Police Science and Administration with a minor in pre-law from Washington State University and his MBA in Information Systems at City University in Washington. After completing his MBA, he attended Seattle University School of Law and obtained his Juris Doctorate of law. He also obtained his police executive certification, a requirement to be a police chief executive of a law enforcement agency in Washington. His academic interests include police executive management, law and justice, juvenile justice and ethics in law enforcement. Professor Minor has significant executive experience, having served as a Chief of Police, President of the Snohomish County Police and Sheriff’s association and the South Snohomish County Police Advisory committee. He also served two terms as the Chairman of the Board for Emergency Services Coordinating Agency (ESCA), a FEMA affiliate.

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