The Supreme Court’s decision regarding birthright citizenship was, to say the least, disappointing to those of us who highly value US citizenship.  What adds to that disappointment is knowing that there are many instances where rights and freedoms set forth in the Constitution have in the past been conditioned or narrowed by the Court when it has been determined that doing so is in the government’s or we the peoples’ interest. 

For example, while the Constitution provides all of us the right to bear arms with no preconditions, the Court has allowed, quite reasonably, that before a person can obtain a gun background checks are required often in concert with a license or permit ( in the case of concealed carry) being issued. 

And yes, we have a right to free speech but the Court has curtailed that “free” speech to the extent that it incites a riot. And, famously, we cannot falsely yell “fire” in a movie theater nor can we defame others whether in the form of libel or slander.

We have a right to protest and peacefully assemble but the Court has allowed that in doing so permits may be required and those not protesting cannot be impeded from going about their business… including blocking traffic.  

We have freedom of religion but certain practices coming out of a religion are subject to curtailment. For example, the Court upheld a federal law banning polygamy, rejecting the argument that religious belief required the practice. In this case, the Court distinguished between absolute protection for religious belief and more limited protection for religiously motivated conduct.

In essence, no right is absolute if it violates the government’s or we the peoples’ interest.

In this context, should the right to citizenship if born on our soil be so absolute it even applies in concert with illegal entry into the country and a prima facia violation of our sovereignty?  Should the right to citizenship if born on our soil be so absolute it even applies in concert with the fraud of birth tourism? Should the right to citizenship if born on our soil be so absolute that it even applies during a period of time that, as understood by both the grantor and grantee of a visa, only allows for presence in this country on a temporary basis whether for work, study, vacation, or medical assistance?

The Supreme Court has in the majority answered “yes” to each of these questions yet what could be more in the government’s and we the peoples’ interest than to eliminate birthright citizenship as an immigration pull factor. What could be more in the country’s interest than to stop the manipulation of a constitutional provision that actually encourages and fosters fraudulent activity. What could be more in the country’s interest than to insure that citizenship is afforded affirmatively and not as a casual outcome of happenstance.

The 14th Amendment’s citizenship provision was originally designed to correct an injustice but its open ended and ill-defined language drafted at a time when our immigration laws were still evolving has ended up perpetrating a new kind of injustice in the modern era…its victim being we the people. The Supreme Court majority failed to recognize this.

It is now up to our elected representatives whether through a constitutional amendment or legislation to advance our interests by definitively narrowing the application of the fourteenth amendment in the context of our immigration laws and in a way that makes common sense.