Friday, November 04, 2005

GOP mulls ending birthright citizenship - Nation/Politics - The Washington Times

I am surprised that neither Rush Limbaugh nor Sean Hannity saw fit to mention this. Sean Hannity did mention that House Republicans are debating the erection of a fence along the US-Mexican border to try to stop illegal crossings. Some people say that the fence will work, and point to demonstrations that have enjoyed some measure of success. Others point out--correctly--that a fence alone will not work, because it does nothing to deter people who overstay their welcome to this country. Furthermore, if you build a fence, you still have to watch it. Now I have an idea for a fence: you build a wall as high as an Interstate Highway sound barrier, or preferably higher, and build it out of the same material. Only instead of planting ordinary ivy, as people do today to make sound walls look more attractive, plant poison ivy (and oak, and sumac). Sorry to be blunt, but that's the way to deal with it. Better yet: settle several colonies of skunks (Mephitis mephitis) along the wall, on the Mexican side. Of course, we have to build the wall about a yard into US territory, so that we can do what we please, and if the Mexicans lay any poison for the skunks or spray any herbicide to kill the poison ivy/oak/sumac, we can recall our ambassador for consultation.

On a more serious side, the movement to end birthright citizenship is gaining a surprising body of support. The only remaining question is how to accomplish it.

The US Constitution (Amendment XIV, Section 1) 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.
Unfortunately, the case of Hamdi v. Rumsfeld appears to uphold the notion that a person is a citizen just because he was born on US soil. Because that case involves a Saudi terrorist claiming American citizenship by birth, the sheer folly of that case deserves comment (and gives us another reason to welcome Justice Samuel J. Alito to the Supreme Court as soon as the Republican caucus in the Senate can send him there).

The law of birthright citizenship is formally called jus soli--the Law of the Soil. Ours is one of the only two countries in the world that still grants citizenship according to jus soli. Guess who the other country is? Drum roll, please--Mexico! And what about the supercilious French, with their constant carping against all things American? They don't practice it.

What most of the world does, and what the USA also does, is follow jus sanguinis, the Law of the Blood. It states that if your parents are citizens, then so are you.

Representative Floyd Flake wants to nullify jus soli in the USA by statute. I wish him every blessing in his endeavor. But I fear that this will require a change in Supreme Court precedent, which is actually older than Hamdi. I recall a case--I don't recall its name--involving a Chinese railway laborer, or "coolie", whose wife gave birth to a son while he was working to lay the Transcontinental Railroad. He took his family back to China when the railroad was complete--but the son then grew up and came to this country claiming to be a citizen. And the Supreme Court said that he was.

So what will happen is that Congress will pass a law redefining citizenship and withdrawing recognition for jus soli. And then someone will sue, and the Supreme Court won't have to intervene if it can muster six votes to let things stand without comment--or to be more specific, to "deny certiorari." Judge Alito, we can't see you join the Supreme Court fast enough.

And we must change the policy, somehow, some way, even if it takes a CJR to emend the Constitution. Because in point of fact, jus soli has seen some practical application in various forms, which I could call jus maris (Law of the Territorial Seas) and jus navium (Law of the Ships). The one case I haven't seen is one involving a child born on an airplane while that plane is in American airspace (jus aeris) or under American registry (jus avium or jus navium aeris). I don't think we can afford to wait that long. Not that I necessarily agree that we're bursting at the seams. But citizenship ought to be more than a matter of convenience. Jus soli requires no ties of family, and no conscious effort, to claim. It is therefore repugnant to republican values, and we ought to abolish it.

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