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Birthright bills bring out the best in debate

John Eastman, a California law school professor, shouldered the legal argument in favor tof the birthright bills. (Photo by Ryan Cook/RJ Cook Photography)

John Eastman, a California law school professor, shouldered the legal argument in favor tof the birthright bills. (Photo by Ryan Cook/RJ Cook Photography)

Those who watched the public hearing on the birthright bills in the Judiciary Committee on Feb. 7 were treated to a brilliant exposition of the 14th Amendment, its meaning and its history, thanks to two lawyer-legislators who prepared as if they were battling a court case, a law professor who superbly argued his view, and the panel’s chairman who allowed everyone to have a say.

The debate over a proposal that ultimately seeks to get the U.S. Supreme Court to redefine who is an American citizen is always going to be captivating, but Sen. Kyrsten Sinema, D-Phoenix, and Sen. Adam Driggs, R-Phoenix, elevated the conversation by tag-teaming in probing the arguments for the proposal and backing their assertions with plenty of examples, including an 1828 Webster’s dictionary definition of the word “allegiance.”

It worked largely because standing at the lectern was a California law professor, John Eastman, who came just as prepared and, despite Sinema’s and Driggs’ efforts, never budged from his assertion that citizenship shouldn’t be automatically conferred on children born in the United States of illegal alien parents.

And Sen. Ron Gould, the committee chairman from Lake Havasu City, didn’t limit anyone’s time to question Eastman.

It also worked because Sinema and Driggs, who are both lawyers but who come from starkly different political moorings, focused on different areas, allowing the committee to cover more ground.

Sinema, a Democrat with liberal leanings, zeroed in the legislation’s potential unintended consequences, chief among them the denial of citizenship to Arizona residents who are lawfully here.

Driggs, a mainstream Republican, took up the role of the skeptical interlocutor, digging into the nuances of what allegiance means — even producing the word’s definition in the early 1800s — and how the birthright bills would affect dual citizens, particularly children born of parents from two different countries.

No one was likely swayed by the arguments offered, but if a challenge to the legislation reaches the U.S. Supreme Court, the debate before the nation’s justices will hew closely to the points scrutinized in Arizona that day.

A vocal critic of the birthright legislation, Sinema was expected to step up her game during the committee hearing.

But it was the first time that Driggs more strongly revealed his sentiments against the legislation. And as a Republican in a state that has often supported a hard-line approach to confronting illegal immigration, Driggs carried the greater political risk than Sinema.

Driggs opened the hearing with a series of questions about the technicalities of implementing the legislation.

Since it creates an “Arizona citizen,” Driggs said he wanted to know, for example, how it would apply to an out-of-state resident who moves to Arizona.

Driggs’ point was but one of the compelling discussions during a hearing that showcased the arguments and counter-arguments over whether a child born to undocumented residents is “subject to the jurisdiction” of the United States, a key phrase in the 14th Amendment, which has been interpreted to grant automatic U.S. citizenship to children born in the country regardless of their parents’ legal status.

The issue can be briefly described as a clash of interpretation over whether jus soli, an ancient concept that grants citizenship to those born within a territory, also extends to the 14th Amendment. Backers of the legislation said it doesn’t. Critics said it does.

Eastman, the dean and Donald P. Kennedy chair in law at Chapman University School of Law in Orange, Calif., said the 14th Amendment’s use of “subject to the jurisdiction” of the United States is ambiguous.

He further asserted that while there were several cases on who is and who is not an American citizen, the U.S. Supreme Court has never ruled on the citizenship of a child whose parents are here illegally.

Eastman said the 14th Amendment has two requirements: One is that a person be born in the United States; the second is that the person be subject to the country’s jurisdiction.

“If all ‘subject to the jurisdiction’ meant was that you were physically present in the United States, that phrase would be almost entirely redundant with the phrase ‘born in the United States,’” Eastman said.

Sen. Andy Biggs, chairman of the Senate Appropriations Committee, later reiterated these points to the Arizona Capitol Times.

The real question is whether “mere presence” — the happenstance of birth — automatically confers U.S citizenship, he said. The child born to a foreign national who was merely visiting the U.S. would be considered an American citizen under the “mere presence” interpretation.

But what Biggs and his pro-legislation colleagues are arguing for is a more expansive interpretation of the phrase “subject to the jurisdiction.” For example, that child would not be subject to a U.S. military draft, Biggs said.

Under Biggs’ argument, that child would not be “subject to the jurisdiction” of the United States, and therefore not a U.S. citizen.

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