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

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.

Back to Dvorak:

When you start to think about the ‘citizenship requirements’ it makes sense that one must inherit it from their parents. According to Bilbray, “You can’t get a million dollars from your parents if they don’t have it. If your parents have nothing you inherit nothing.”

This is one of those arguments that sounds like common sense for those with a profound ignorance of the law. The rest of us understand -- I hope -- that inheritance and property rights are governed by a patchwork of state laws and, on the federal level, the United States Civil Code and have nothing in the world to do with citizenship as it's spelled out in the United States Constitution.

There is often a lot of talk about the right to citizenship through the 14th Amendment. This was federalized (sic) in the 1860’s for the West African Slaves (sic). Bilbray states the slaves could be forced (sic) into the military and could be tried for treason, therefore their children were eligible to become citizens.

Nope. Congress passed the 14th Amendment, it was duly ratified by the states and therefore the children of slaves were eligible to become citizens.

Bilbray also points out that this Anchor Baby portion is a basic rule. “Congressman Deal of Georgia added a birthright component to Georgia’s immigration bill. A parent has to be a U.S. citizen or permanent resident or you don’t get “Anchor Baby” citizenship.”

Here is an example of a right-wing lawmaker with a nutty idea citing another right-wing lawmaker with an equally nutty idea as proof that "this anchor baby portion is a basic rule."

Deal's legislation went nowhere, and Deal himself has said, "this will never get a hearing and will never be an issue that we get a chance to vote on."

And, of course, the State of Georgia can't grant or withhold citizenship -- it can only pass laws restricting some state-administered benefits to the children of undocumented immigrants.

The 2010 ballet (sic) initiative is a great opportunity for Californians to take back their state and reform immigration.

Indeed. Like Dvorak, Bilbray and others who rail about "anchor babies" have a problem with the English language, which, in the text of the Constitution, is quite unambiguous and has been affirmed in a number of key cases before the Supreme Court. Unfortunately, they don't have the fortitude to try to amend the document like Ron Paul, so they have to stoop to ridiculous arguments about 8 month pregnant women waddling over the border in order to give birth to an American and cash a welfare check.

A more serious examination suggests that the whole premise for restricting birthright citizenship is false.

The United States Commission on Immigration Reform (CIR) conducted the most comprehensive and sophisticated study of the economic impact of immigration during the last great immigration scare in the mid-1990s, when Sen. Alan Simpson, R-Wyo., and Rep. Lamar Smith, R-Texas, launched a crusade against the foreign invasion of the day. Its findings flew in the face of the conventional wisdom which holds that immigrants suck up more in services than they pay in taxes.

To understand why, you have to look at the entirety of what immigrants pay into the system and what they take out of the system, and you have to distinguish between the short- and the long-term.

The kernel of truth is that recently arrived illegal immigrants do take more in public services than they pay in taxes. But looking ahead to the next generation this deficit reverses quite dramatically. The authors of the CIR study noted that only by looking at the big picture -- including the returns on the investment of education -- can the full fiscal effect of immigration be considered.

The CIR found that when you look at that big picture, the average immigrant and his or her offspring will contribute $80,000 more in taxes than they take in services. The economists found that even those immigrants with less than a high school education contributed positively to the budget when the second generation is included.

When one strips away the demagoguery, that's the reality that's left.

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