Don't end-run 14th Amendment

Constitution's language means what it says

Published December 29, 2005 at midnight

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For almost 140 years, the 14th Amendment has been presumed to grant U.S. citizenship to anyone born here except the children of foreign diplomats.

But now there's an effort in Congress, supported by Colorado Rep. Tom Tancredo, that would remove the right for the children of illegal immigrants - not by amending the Constitution, but by passing a bill.

It may in fact be time to address birthright citizenship, but we don't believe it can be done by legislation. If you're going to tamper with the Constitution, you've got to do it the hard way. You pass an amendment. If Congress tries to revise the Constitution through legislation, it is no different from "activist judges" some members complain about.

Here's what the 14th Amendment's Section One says: "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."

Proposed in June 1866, a year after the Civil War, and ratified by July 1868, it was designed to overturn the U.S. Supreme Court's egregious Dred Scott ruling of 1857, which held that slaves were not and couldn't become citizens. The main Supreme Court decision applying the doctrine to all persons born here was the Wong Kim Ark ruling of 1898, which said the child of Chinese immigrants - themselves not at that time even eligible for citizenship - could be a citizen by virtue of his birth here. After all, even though the amendment may have been inspired by the slaves' status, it doesn't specifically refer to them. Others born here are just as eligible because they are clearly "subject to the jurisdiction" of the United States.

Tancredo argues differently on his Web site. He claims the drafters never intended to confer citizenship on the children of illegal immigrants and that mere physical presence in the land doesn't necessarily make a child subject to U.S. jurisdiction.

Perhaps the amendment's authors would agree with Tancredo if they could pipe up today. But of course they can't. The key phrase "subject to the jurisdiction thereof" exempts only diplomatic personnel, who are not subject to U.S. laws.

For that matter, maybe the amendment does in fact create a "perverse incentive" for people to sneak into the U.S. and have children, as Tancredo argues. But language is language.

Tancredo has suggested putting the measure changing the 14th amendment's meaning in a broader bill that Congress wouldn't dare turn down. That is a common but shameless congressional tactic.

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