Wingnut Congressman Brian Bilbray's Ignorance about the Constitution and Citizenship Is Shocking

By Joshua Holland, AlterNet. Posted July 8, 2009.

While my worldview differs fundamentally from that of Ron Paul, I grudgingly respect the iconoclastic rep's consistency. He says he loves the Constitution, and he does adhere to its limits.

Paul thinks that the the provision of the 14th Amendment that grants citizenship to all persons born in the United States (and whose parents are "subject to the jurisdiction thereof") is a mistake. So, every year he trots out a proposal to amend the United States Constitution in order to do away with "birthright citizenship" once and for all.

To pass an amendment you need a 2/3 super-majority in both chambers of the Congress and then it needs to be ratified by 3/4 of the states. That is to say, Paul's scheme to re-write the 14th has as much chance of passage as I have of singing La traviata at the Met.

But even if Paul is tilting at windmills, he accepts the language of the law, and is trying to change it. Good for him. It keeps him from having to engage in wild intellectual contortions in order to argue that the law says something which it clearly does not.

Brian Bilbray, a GOP Rep from California and ardent anti-immigrant hardliner, could take a page from Paul's book. Bilbray is helping push a ballot initiative in California that would limit various benefits for the children of undocumented immigrants. In doing so, Bilbray is trying to harness some right-populism to take on the very foundation of citizenship in this country.

Consider his arguments against the 14th Amendment's citizenship clause, and as you do remember this: under the law, there are various rights and responsibilities accorded to "citizens," and others granted to "persons". The distinction is not accidental, and the courts have affirmed time and again that those rights accorded to "persons" apply to everyone, save for a few exceptions that are spelled out in the law.

Here are Bilbray's arguments, courtesy of Kimberly Dvorak, a semi-literate conservative blogger for the San Francisco Examiner:

Congressman Bilbray supports proposed (sic) “Anchor Baby” reform initiative put forward by the Taxpayers Revolution group in San Diego.

“It is an urban legend that everybody born here is an automatic citizen,” Bilbray said. “When International diplomats are here in the U.S. and they have children, they are not given citizenship.”

Again, the 14th Amendment reads: "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." Diplomats are not "subject to the jurisdiction of" the United States -- they fall under diplomatic law.

In a 1942 case, In Re Thenault -- one that's oft-cited by immigration restrictionists -- a federal judge pointed out that "the mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception ... to the Constitutional provision relative to citizenship, Amendment Article 14, Section I."

Oh well. Back to Dvorak's lilting prose:

This all has to do with the 14th Amendment and subject jurisdiction (sic).

The congressman points out there are two things that go hand in hand with being a U.S. citizen; “Can you be drafted to serve for your country and can you be tried for treason?”

Bilbray contends that if the parents aren’t loyal to the U.S. the children can’t inherit citizenship. “The Calvin case in 1608 stated ‘it is neither the soil or the climate, but the loyalty and obedience that make a subject loyal.’”

Aside from citing jurisprudence from the Renaissance era, the irony here is that Bilbray's leaning on a case that flies in the face of his argument. The decision in the Calvin case way back in 1608 found that "persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King's dominion owed allegiance to the sovereign and in turn was entitled to the King's protection."

It's essentially the legal basis of "birthright citizenship" in the United States.

As for the rest of the argument, while she may not have been the first to trot it out, as far as I know it originated with  über-conservative activist Phyllis Schlafly. And, apparently, it's a "legal argument" that she simply extracted from her rectum, only to be repeated again and again by people like Brian Bilbray.

The problem is that it's utter nonsense on its face. The Constitution lays out requirements for citizenship, none of which is being eligible to be drafted into the military (or women wouldn't be citizens) or tried for treason (or citizenship would  be denied those unfit to stand trial). It's like reading the Constitution and claiming that there's a right to free speech, but only for those who favor chocolate ice cream over vanilla. You can say it, but it doesn't make it true.

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Joshua Holland is an editor and senior writer at AlterNet.

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