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Close the 'birthright citizenship' loophole

By David Vitter, Special to CNN
  • David Vitter: Automatic citizenship to babies born in U.S. to illegal immigrants is wrong
  • "Birthright citizenship" attracts more adults into the U.S. illegally, Vitter says
  • The 14th Amendment has been misinterpreted to allow these babies to be citizens, he writes
  • Vitter says his legislation would close the "birthright citizenship" loophole

Editor's note: David Vitter is a U.S. senator from Louisiana and the chairman of the U.S. Senate Border Security and Enforcement First Immigration Caucus.

(CNN) -- America's illegal immigration problem is out of control. To change this, we must better protect our borders, particularly the Mexican border, and ensure that only citizens and those in our country legally can be hired for jobs.

Another change we must make is to stop babies born in this country to two illegal immigrant parents from automatically becoming U.S. citizens as they do now; this happens tens of thousands of times in the U.S. every year. This is just flat wrong, and it serves as a magnet to attract more and more adults into our country illegally.

I believe the policy of birthright citizenship is incompatible with both the text and the legislative history of the 14th Amendment, which is why I recently introduced legislation so that a person born in the United States to illegal immigrants does not automatically gain citizenship unless at least one parent is a legal citizen, a lawful permanent resident (green card holder) or an active member of the Armed Forces.

Closing this loophole will not prevent anyone from becoming a naturalized citizen. What it will do is ensure that he or she has to go through the same process as anyone else born of foreign national parents who wants to become an American citizen.

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I don't believe that the 14th Amendment to our Constitution grants birthright citizenship to the children of illegal immigrants. In fact, all we have to do is use history as our guide. It reminds us that this amendment was specifically designed to address the horrible injustice of slavery -- not to grant citizenship to children of people living in our country illegally.

The language was derived from the 1866 Civil Rights Act, which provided that "[a]ll persons born in the United States, and not subject to any foreign power" would be recognized as citizens.

The 14th amendment does not say that all persons born on U.S. soil are citizens, but says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The phrase "subject to the jurisdiction thereof" is critically important, though often ignored or misconstrued by proponents of birthright citizenship.

The original meaning of the phrase means not owing allegiance to another country, because it referred to the jurisdiction that a foreign government maintains over its citizens. This is why the Supreme Court held in Elk v. Wilkins (1884) that a Native American was not a citizen merely by reason of his birth within the United States, because he "owed immediate allegiance to" his tribe and not the United States.

Native Americans and their children did not become U.S. citizens until Congress passed the Indian Citizenship Act of 1924. Congress should make a similar determination that "subject to the jurisdiction thereof" does not include the children of illegal immigrants born in the U.S.

When it comes to U.S. citizenship, it is not just where an individual is born that matters; the circumstances of a person's birth and the nationality of his or her parents are of equal importance. I do not believe that our constitution confers citizenship on the children who happen to be born on U.S. soil to foreign tourists or illegal immigrants.

Opposing view: All babies born in U.S. are citizens

Can the 14th Amendment defend itself?

Our practice of birthright citizenship is an incentive to illegal immigration and does a disservice to every would-be citizen who is following the rules and applying to be naturalized. This misguided policy is not based upon constitutional requirements or mandated by federal law, but stems from a fundamental misunderstanding of the 14th Amendment. Congress has the authority and the obligation to reverse this practice.

Therefore, my goal is to make sure that our 14th Amendment is not stretched to allow a person born in the United States to illegal immigrants to automatically gain citizenship. I want to bring the 14th Amendment back to what its drafters intended -- nothing more and nothing less.

The opinions expressed in this commentary are solely those of David Vitter.