Banning Birthright Citizenship Makes Newborns Criminals in Their Crib

By Christine Flowers

There have been some interesting discussions about birthright citizenship, intensified by Donald Trump’s election a few weeks ago.

A number of people who are angry at the chaos at the border have jumped right over the normal processes and procedures which would guarantee illegal border crossings are limited, and hit right at one of the core principles of our nation, one embedded in the 14th Amendment – if you are born here, regardless of the status of your parents, you are a U.S. citizen.




The actual wording of the amendment is as follows: “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.”

Those who don’t like the idea that birth on American territory automatically grants you the gift of American citizenship have started to parse the words of the amendment. They are doing what gun reform activists tried to do with the 2nd Amendment, making the “right to bear arms” a collective right held by “militias,” not an individual and a personal right for each and every American citizen. That parsing, which would make every Catholic school English teacher who ever diagrammed a sentence on a blackboard proud, was roundly rejected by the Supreme Court in the Heller decision, which recognized an individual right to own a gun. That being the case, conservative attempts to dismantle well over a century of constitutional precedent is dishonest, and untenable.

Some argue the phrase “subject to the jurisdiction of” means parents of the child born in this country must be legally here in order to confer citizenship. The point they are missing, or actually one of several points, is that it is not the parents who are conveying anything but life to the child.




It is the Constitution itself that is conveying citizenship. More importantly, virtually everyone physically present in the U.S., regardless of legal status, is subject to the jurisdiction of our government. If this were not the case, we can imagine a Batman style Gotham city environment, where illegal aliens could just commit crimes and the only thing we could do if we catch them is deport them. No arrests, no jail terms, no trials and no life sentences.

Imagine if that were the case with Laken Riley’s murderer, an illegal alien who is now going to spend the rest of his life behind bars. This writer would have been happier had he been sentenced to death, but that’s another column altogether.

The idea we can simply strip people of their citizenship and thereby erase a constitutional right, merely to solve a problematic but temporary problem at the border, is anathema. I know legal scholars have differed on the integrity of birthright citizenship, but they are going to need better arguments than those proffered by anti-immigration activists in order to be able to convince even this conservative Supreme Court of their legitimacy.

I am an immigration lawyer and my bias is incorporated into my viewpoint. Thirty years of doing this work will color anyone’s perspective on the laws governing immigration policy. I understand extremely well the importance of maintaining order at the border, but stripping people born here of their birthright, one over a century old in its recognition, on specious political grounds is not going to advance that goal.




People do not come here to “have” U.S. citizen children, who frankly can only be of benefit from an immigration perspective after the child turns 21 or in a few other very limited circumstances. The immigration laws already eliminate U.S. citizen children as the basis of most waivers of inadmissibility and against deportation/removal, so this is simply an appeal to the lowest common denominator, the basest instincts of the xenophobic.

Where will we draw the line? Is being born to a citizen the only way to ensure the citizenship of the child? Is being born to a visitor who has the right to live here for a few months enough? Do you need your green card? And is this what we want, a world where your value is based on your parents’ status in the country? I don’t think that Americans are that sort of people.

So even if you do support Trump’s more draconian policies on immigration, you are not as patriotic as you think if you are in favor of making newborns criminals in their cribs.

Christine Flowers is an attorney and a columnist for the Delaware County Daily Times, and can be reached at [email protected].