“Dear Vin: I must take strong issue with your column of June 4. It appears to me that you have approached the limiting issue in Fourteenth Amendment citizenship from an erroneous perspective. ...

“The Fourteenth amendment says, ‘All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States. ...’ To be subject to the jurisdiction merely means that when a person is called into court, the laws of the United States will apply to the person. There is, and can be, no exception for the children of illegal immigrants born within a state of our union.

“So who is exempted by the language in the Fourteenth Amendment? You point out that the provision arises in one of the Civil War Amendments that sought to assure citizenship to the black residents, and that the ‘jurisdiction’ language was present to exempt the aboriginal American population. ...

“By 1924, the last vestiges of even this restriction disappeared and all Native Americans born within the borders of a state were ceded citizenship. Still, the Fourteenth Amendment restriction retains some legitimacy. A child born to foreign diplomats serving within the United States need not be granted United States citizen status. The child is not ‘subject to the jurisdiction’ of the United States. The family is expressly exempted from jurisdiction under the doctrine of diplomatic immunity. ...

“Not so with the children of illegal immigrants. Their parents are subject to the jurisdiction of the United States. They can be hauled into federal court, and the federal court can order them deported. This is not the absence of jurisdiction, but the very essence of jurisdiction. ... The offspring of illegal immigrants born within the borders are subject to conscription and selective service registration. These children are, in every sense of the words, subject to the jurisdiction of the United States. ...

“The strictures of the law must remain applicable even when inconvenient. Carving out an exception for children of illegal immigrants based on the phrase ‘subject to the jurisdiction thereof’ under the Fourteenth Amendment smacks of the same tactic as using the militia language to limit the Second Amendment. ...”

# I replied: “Hi, Bob --

“Is it true that the Supreme Court in the 1872 Slaughter House case (U.S. 36, 73) confirmed ‘The phrase, “subject to the jurisdiction thereof,” was intended to exclude from its operation, children of ministers, counsels, or citizens or subjects of Foreign States born within the United States’?

“Though I’m still trying to confirm it, I also find reference that Rep. John Bingham of Ohio, the father of the 14th, said on March 9, 1866, ‘I find no fault with the introductory clause’ (of what was then bill S 61) ‘which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen ...’

“Illegal aliens are, it seems to me, ‘subjects of a foreign state’ who ‘owe allegiance to a foreign sovereignty.’ If they seek to make themselves ‘subject to the jurisdiction’ of the United States, where are their green cards? ...

# A few days later, Bob tried again, confirming my reading of the Slaughterhouse Cases. However, “A mere 24 years later the Supreme Court made it clear that the statement was of no legal effect and contrary to ... the Constitution so far as it relates to children born in the United States of aliens. The Court stated in United States v. Wong Kim Ark, 169 U.S. 649 (U.S. 1898): ‘This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities. ...’ Justice Miller’s statement in Slaughterhouse Cases was then soundly rejected.

“The Wong Kim Ark decision also addresses your next point. The amendment does not provide that children cannot be citizens if their parents are here while ‘owing allegiance to a foreign power,’ or failing to ‘accept the jurisdiction of the United States.’ It says, ‘subject to the jurisdiction.’ It is not the product of any voluntary act by the alien or their offspring, but rather a legal status that either exists or does not exist.

“Indeed, if an illegal alien is not ‘subject to the jurisdiction’ of the United States, then the United States has no power to deport the person or even refuse him entry. Note that Daniel Ortega and Fidel Castro have walked the streets of New York City. This is because they are not ‘subject to the jurisdiction’ of the United States when couched in diplomatic protections. Illegal aliens are, nonetheless, subject to the jurisdiction of the United States. The United States can pick them up, imprison them, and put them out of the country. ...”

# And back again, one more time:

“Hi, Bob -- I fear your definition of ‘subject to the jurisdiction’ is flawed. A serious problem, as we try to analyze this section in 2006, is that today’s White House asserts American ‘jurisdiction’ essentially everywhere. If the government claims a right to go kidnap Manuel Noriega and bring him here to face trial under our drug laws -- or to round up combatants and non-combatants alike in far-off Afghanistan and imprison them at Guantanamo under federal executive ‘jurisdiction’ -- then the problem with defining ‘under U.S. jurisdiction’ to mean anyone who the U.S. can round up and bring to trial, is that it leaves hardly anyone OUTSIDE U.S. ‘jurisdiction.’ Is the child of an Afghan terrorist, born in Afghanistan, automatically a U.S. citizen?

“You say it’s not a matter of choice and willful action, but merely of geographic locale. I’m not so sure. Surely there are legal prerogatives that apply only to the ‘occupants’ of a house. But at the time he’s arrested, clearly the cat burglar ‘occupied’ the house (heck; he was the only ‘occupant’) -- so how can he be charged with burglary? Similarly, zoning codes may bar ‘occupancy’ of my house by 20 people ... but I don’t violate that law if 18 of the ‘occupants’ have come over for an evening barbeque. It seems we must dig a little deeper than the common usage of ‘bodies present’ for a legally useful definition of ‘occupancy.’ Similarly, I believe the Slaughterhouse court was perfectly within its jurisdiction to parse what the authors of the 14th really meant by ‘subject to the jurisdiction.’

“Isn’t it true that the parents in the oft-cited Wong Kim Ark case were legal residents, which may make that case off point for discussion of the children of illegal trespassers?

“Yes, past waves of immigrants have assimilated well. My father’s parents were among them. But today, Muslim workers are NOT assimilating well in Western Europe. It’s legitimate to worry about this, and to seek to avoid such a pattern here.

“How? Some have started to talk about a Constitutional amendment to remove ‘birthright citizenship’ for so-called ‘anchor babies.’ But surely before launching that lengthy and expensive process, folks should read it and determine what’s already there. ...”

# Here I’ll cut off the correspondence for lack of space. I still believe we should read the “subject to the jurisdiction” clause for ourselves, not take the word of anyone (including black-robed poobahs) that birthright citizenship is automatic for everyone.

But as to this little debate between me and Bob, on further review, I believe Mr. Nersesian is mostly right.

The key error, I believe, is reading the section as though it’s the parents whom the amendment refers to as being “subject to the jurisdiction.” Rep. Bingham may have spoken of the parents, 140 years ago. It might be better if the Constitution were so worded. The 14th as enacted, however, refers not to the parents, but solely to the child.

And is any child born here -- other than a child of foreign diplomats -- automatically “subject to the jurisdiction of the United States,” thus meeting the sole remaining requirement for citizenship?

Till someone can demonstrate otherwise, I’ll have to say, “Pretty much.”

We must look for a solution elsewhere, in rigorous enforcement of existing immigration laws.