Incorrect interpretation of Birthright Citizenship?

Brian Lonergan at American Thinker has written a great post about how we’ve misinterpreted the 14th Amendment regarding birthright citizenship, specifically of illegals and those coming over in what is being deemed as birth tourism.  An excerpt from Mr Lonergan’s post:

For decades, many agencies have treated virtually all children born in the United States – even the children of illegal aliens or tourists – as citizens at birth under the Constitution.  This all-inclusive interpretation of birthright citizenship, repeated endlessly in the mainstream media, is what gave rise to the “anchor baby” phenomenon.  With children born in the United States to illegal alien parents instantly qualifying for welfare and other state and local benefit programs, the incentive for aliens to have their children born in the U.S. is immense.

Yet under Supreme Court precedent, neither the children of illegal aliens nor those of tourists are citizens at birth.  In the 1898 case of United States v. Wong Kim Ark, the Supreme Court found that a man born in San Francisco to Chinese parents was a citizen at birth under the Fourteenth Amendment because his parents, when he was born, were legally residing in the United States.  The holding of this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons whatsoever born in the United States, with the narrow exceptions of children of diplomats, members of an invading force, and Indians born in the allegiance of a tribe.  The brief shows that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship.  The Court’s decision has been incorrectly applied for 120 years.

Based on Wong Kim Ark and an earlier decision in Wilkins v. Elk, the still controlling rule of the Supreme Court is clear: whether one is a citizen at birth under the Fourteenth Amendment depends on whether one was born in the United States to a U.S. resident parent who, at the time, both had permission to be in the United States and owed direct and immediate allegiance to the United States.  This rule happens to exclude the children of both illegal aliens (who do not have permission to be in the country) and tourists (who do not “reside” here) from constitutional birthright citizenship.

Immigration law in general needs to be reviewed and revamped.  The system simply cannot continue in its current form if we’re to survive as a country.  The spirit of too many of our laws is no longer respected, and loopholes have been abused such that programs that were initially created to help those in dire need are now seen as the prize for getting to America.  We cannot survive as a welfare state with our current immigration policies.  One has to go.  Ideally both.

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