14A is the famous "birthright citizenship" amendment that begins
"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 one knows what the phrase "subject to the jurisdiction thereof" really means and it's been suggested we need a new constitiutional amendment to tell us. But at the end of the 14A is the phrase
"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
This means congress can simply pass a law saying children born to illegals are not citizens and there is no need to go thru the lengthy amending process. It can be done overnight!
Actually we know exactly what it means:
Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population.
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction.
“…and to all persons who may happen to be within their jurisdiction.”
This would include a newborn child and citizen of the United States, regardless his parentsÂ’ national origin or immigration status.
Because all persons in the United States are afforded due process rights, any act of Congress designed to deny citizenship rights to children born of undocumented parents may be challenged in Federal court and, per existing case law, struck down as an equal protection violation:
The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus, we have treated as presumptively invidious those classifications that disadvantage a "suspect class," [n14] or that impinge upon [p217] the exercise of a "fundamental right." [n15] With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances, we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a [p218] substantial interest of the State.
Clearly seeking to deny citizenship rights and privileges to citizens born of undocumented parents does not further a substantial interest of Congress, or a compelling governmental interest overall, and is consequently solely motivated by animus toward those undocumented and their citizen children.
Indeed, our most ancient and fundamental judicial tradition has never sanctioned punishing children for the misdeeds of their parents:
But the children of those illegal entrants are not comparably situated. Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status." Trimble v. Gordon, 430 U.S. 762, 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.
[V]isiting . . . condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the . . . child is an ineffectual -- as well as unjust -- way of deterring the parent.
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)
The question as to whether the intent of the Framers of the 14th Amendment was to confer citizenship at birth or not is therefore moot – as all persons are entitled to due process rights regardless his immigration status, or the immigration status of his parents, where any law designed to take away one’s citizenship because of this parents immigration status, or deny him citizenship at birth, is
prima facie un-Constitutional.
For example, a Federal court recently struck down as un-Constitutional a Florida law denying in state tuition to citizen residents whose parents were undocumented:
As discussed further in this opinion, classifying U.S. citizen students who reside in Florida according to their parents' undocumented federal immigration status does not advance any legitimate State interest, much less the State's important interest in furthering educational opportunities for its own residents.
Accordingly, Defendants' [the State of Florida] regulations must fail because they deny to each of these United States citizens the equal protection of the laws as guaranteed under the Fourteenth Amendment to the United States Constitution.
http://dl.dropbox.com/u/27924754/Ruiz94 8-31-12.pdf
Just as US citizen students may not be singled-out and subject punitive measures as a consequence of their parents’ immigration status, so too may citizenship not be taken – or withheld – as a consequence of their parents’ immigration status.
Link for quoted above:
Plyler v. Doe
