Denash Patel, chief of orthopedic surgery at Massachusetts General Hospital. Patel pioneered the design of instruments to diagnose and correct knee problems, and has been a continuing professor at the Harvard medical schools.

And the list goes on. Doreen Heinz-Wilkerson, honored for her contribution to education, 18 years in the Massachusetts Department of Health, came to the United States from her native Jamaica to get an education, and received three degrees-one a doctorate from Harvard University. She has been a teacher, principal on the faculty of the Harvard Graduate Schools of Education, and has also been praised for her administration of the METCO program which provides suburban education for minority children, inner city, during the most sensitive period in our history.

Betty Kit Fong Yau won praise for her early involvement as a founding member of the Bridge Committee in Quincy for Asian Americans who immigrated from Hong Kong. And the list goes on. This is just last night in my own city of Boston, and it is a clearer indication as to what is really happening out there than some have characterized.

These voices are impressive signs of the continuing renewal and revitalization that new citizens bring to America. As Barbara Jordan said, "It was immigration that taught us that it does not matter where you come from, or who your parents were. What counts is who you are."

Enduring principles of citizenship remain the same. But it is also important that we periodically examine the requirements of naturalization to ensure that they properly reflect those principles in our modern society. We should ensure that the English and civics exams that are part of the naturalization process adequately measure their knowledge of English, and our history and our Govern

ment.

But we should reject the misguided efforts of those who urge us to impose restrictive standards that seek homogeneity over diversity. Such appeals are contrary to our immigrant history and heritage. They are thinly disguised appeals to prejudice and bigotry. They ignore the extraordinary contribution that immigrants from many different lands have made to our country and its ideals.

Our national motto is as appropriate today as it was at the beginning e pluribus unum-out of many, one. Our citizenship laws honor our diversity, and they always should.

So I commend the Chairman for holding this hearing on these fundamental issues, and I look forward to the testimony of our wit

nesses.

Thank you, Mr. Chairman.

Senator SIMPSON. Thank you very much, Ted.

There is no question of the value of immigration and the success stories, but those can only continue if we assure that our systems are not abused, and misused. I think we would all concur.

At this point, I would like to enter the prepared statement of Hon. Brian P. Bilbray, a Representative in Congress from the State of California.

[The prepared statement of Representative Bilbray follows:]

PREPARED STATEMENT OF HON. BRIAN P. BILBRAY

Good morning, Chairman Simpson and Members of the Subcommittee. First, I would like to congratulate you, Mr. Chairman, on your years of public service and your achievements in the area of immigration reform. Your contribution to the people of the United States of America has been unparalleled and you will be sorely missed.

Second, I would like to extend my gratitude to you for holding this important hearing which will, in part, address the issue of automatic United States citizenship. As you may know, this issue is of great significance to me, personally, because I grew up along the Mexican border, dealing with the consequences of an open border, which are exacerbated by the strains which automatic citizenship places on the system.

Based on this life-long experience, last year I introduced "The Citizenship Reform Act of 1995," H.R. 1363, which denies automatic citizenship to children of illegal aliens who are born on U. S. soil. My legislation makes this change statutorily by amending the Immigration and Nationality Act. H.R. 1363 has 50 bi-partisan_cosponsors, including Representative Jay Kim, who, it is important to note, worked within the system to legally immigrate from Korea.

The current interpretation of the law allows children of illegal alien parents born on U. S. soil to automatically be granted U.S. citizenship. In 1992, over 96,000 babies of illegal aliens were born in California alone. These children then qualify for benefits including Medicaid, AFDC, WIC and SSI. It is my view that this is an insult to legal aliens, such as my mother, who observed our immigration laws and came to the U. S. through the proper channels.

However, the most striking fact about this issue is that there is no basis of law or Supreme Court ruling for the current interpretation. As I will explain further, the Fourteenth Amendment and the debate surrounding it is very clear in its assertion that "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." In addition, there has been no Supreme Court ruling on a case dealing with the children of illegal aliens.

The Fourteenth Amendment to the Constitution was consistent with British common law and reconfirmed the consensual basis for citizenship. The Amendment was crafted in such a way that if a person was granted federal citizenship, they were automatically a citizen of their State of residence. The intent of the Fourteenth Amendment was to grant citizenship for newly freed slaves, and to supersede the Dred Scott decision which stood in violation of the common law view of citizenship. However, the 1866 Senate debate on the Amendment centered around the citizenship status of American Indians. During the Senate debate, Senator Howard from Michigan stated "Indians born within the limits of the U.S. and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction." Senator Trumbull, the Chairman of the Judiciary Committee, posed this question, "What do we mean by 'subject to the jurisdiction of the United States?" Not owing allegiance to anyone else. That is what it means." This was reaffirmed by the Senate Judiciary Committee in a report it issued on the status of Indian citizenship. The report found them not to be citizens, because they were not "under the jurisdiction of the United States" at the time the amendment was adopted. The Committee's opinion was that "the Fourteenth Amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States."

Section 5 of the Fourteenth Amendment states that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." Congress has employed this Constitutional power by enacting legislation which clarified the citizenship status of American Indians. After passage of the Fourteenth Amendment, Congress issued the "Act of July 15, 1870," in which a Winnebago Indian from Minnesota was permitted to apply for citizenship, with the condition that the Indian cease to be a member of the tribe, and his land be subject to taxation. The "Indian Territory Naturalization Act" of May 2, 1890 broadened the earlier act by allowing any member of any Indian tribe or nation residing in Indian Territory to apply for citizenship. From 1854 until 1924, citizenship was a common government incentive to encourage the assimilation of Indians. Congress' authority to naturalize Indians has been sustained by the courts in the cases of Elk v. Wilkins in 1884 and United States v. Celestine in 1909.

Indians were perceived to owe allegiance to their tribe, and were therefore, not under the "obedience" of the United States. Indians could only be granted U. S. citizenship by an act of Congress in which they had to renounce their allegiance to their tribe. Today, those that are in the United States illegally are clearly not "subject to the jurisdiction thereof" or rather obeying the federal government, as illus

trated by the fact that they have chosen to violate our immigration laws. If illegal aliens have babies on U.S. soil they, according to precedent, must demonstrate obedience to our laws. This, as the historical record has demonstrated repeatedly, in cases involving Indians, can be achieved only through acts of Congress. Indians were not considered automatic citizens; by the same logic, therefore, children of illegal aliens should not receive automatic citizenship.

There have been a number of notable court rulings addressing the issue of citizenship. A federal district court in Oregon ruled in the 1871 case of McKay v. Campbell that the Fourteenth Amendment was merely declaratory of the common-law rule of citizenship. The case involved a plaintiff whose father was a British_subject and whose mother was a Chinook Indian. It was ruled by the Court that Indians born in tribal allegiance were not born in the U.S., and subject to the jurisdiction thereof. The Court ruled that "to be a citizen of the U.S. by reason of his birth, a person must not only be born within its territorial limits, but he also must be born subject to its jurisdiction—that is, in its power and obedience". Under the obedience means that they are obeying U.S. laws. If someone enters the U.S. illegally, they are violating U.S. laws. This basic disobedience of U.S. immigration law, negates the illegal alien as being “subject to the jurisdiction of the United States."

The court also ruled that it is the exclusive right of Congress to grant citizenship. The plaintiff was not "born a citizen of the United States, and can only become one by complying with the laws for the naturalization of aliens *** But that is a matter within the exclusive cognizance of Congress". Under this precedent, Congress may act on the granting or narrowing of U. S. citizenship.

The findings of McKay v. Campbell were upheld in 1884 by the Supreme Court case of Elk v. Wilkins. Here the Court held that an Indian living in the city of Omaha, apart from his tribe, was not a citizen under the Fourteenth Amendment. The Court relied on the Fourteenth Amendment's requirement that a citizen be born "subject to the jurisdiction" which it found not to apply to Mr. Elk, because he was born under tribal authority.

The Court ruled, and I quote, "the phrase 'subject to the jurisdiction thereof embraced only those who were subject to the complete jurisdiction of the United States, which could not be properly said of Indians in tribal relations. But it was distinctly announced by the friends of the amendment that they intended to include in the granting of national citizenship to Indians who were within the jurisdiction of the States, and subject to their laws, because such Indians would be completely under the jurisdiction of the United States.” In its opinion, the Court quoted Senator Trumbull from the original Senate debate of the Fourteenth Amendment as saying, "It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."

Supreme Court Justice Cooley in the Elk v. Wilkins case, referred to the definition of national citizenship as contained in the Fourteenth Amendment, saying that "By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens." He went on to say that Indians are "subject to the jurisdiction' of the United States only in a much qualified sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights—or, on the other hand, subjected to the full responsibilities of American citizens."

In the case of the United States v. Wong Kim Ark, the plaintiff, Mr. Ark was born in San Francisco in 1873. His parents were legal immigrants from China and were "domiciled residents of the United States." The Court held that Mr. Ark was a citizen of the United States even though his parents owed allegiance to the Emperor of China.

This case was based upon the fundamental principle of the British common law. Supreme Court Justice Gray, discussed this principle in the Court's opinion, that "the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because [they were] not born within the allegiance, the obedience, or the power, or, as would be said at this day within the jurisdiction of the king." The Wong Kim Ark case was consistent in this regard with British common-law.

However, the major distinction with this case was that Wong Kim Ark's parents had come to America legally. The Supreme Court has never ruled on the case of a child of someone who had come to America illegally. It has only ruled on the narrow factual case of children of legal immigrants.

The above mentioned is the historical context; in the present, there is the very tangible question of cost to local counties and States that bear the brunt of the burden of caring for the children of illegal aliens. The nearly 96,000 babies who were born to undocumented women covered by the Medi-Cal program in 1992 represented an 85 percent increase over three years. In 1992 alone, the cost to California taxpayers was more than $230 million in medical bills. In my county of San Diego, the county estimates that the total cost for undocumented immigrants from 1992 to 1993 was over $64 million. These are costs that counties and States just simply cannot afford, especially when a large percentage of these costs are incurred outside the parameters of any true basis of law or Supreme Court ruling.

Let me be clear in one essential point. I do not blame young mothers for wanting the best health care possible for themselves and their babies, or to give their children the option of a better life in America. It is by no fault of their own that the United States' failed immigration policies have resulted in their being encouraged to come into this country illegally. However, their plight or predicament does not give them a free pass to circumvent those who are trying to work within the system to come to America legally. By the same token, it is also not the fault nor the responsibility of the American taxpayer, who is paying for these costs through less benefits and higher taxes.

Although a number of my colleagues advocate a constitutional amendment to correct this interpretation of the law, it is my view that this would be superfluous. The fact that the Supreme Court has never ruled on this issue, coupled with the difficulty of passing an amendment to the Constitution, gives strength to my argument of implementing this change statutorily. The Congress has demonstrated its authority to act under Section 5 of the Fourteenth Amendment by granting citizenship to American Indians. The Congress' elected status and our position as co-equal branches of government, gives our actions great weight in the Supreme Court. Therefore, it is under Congress' purview to define more clearly the intention of the framers of the Fourteenth Amendment as to who is and who is not a citizen of the United States. We should exercise this purview by amending the Immigration and Naturalization Act. Should this be found to unconstitutional, then, and only then would a Constitutional amendment be necessary. However, until such time, it is clearly and completely within the authority of the Congress of the United States to further define citizenship laws of our great country.

Again, I would like to thank you, Chairman Simpson and Members of the Subcommittee for allowing me the opportunity to submit this testimony on birthright citizenship and I look forward to taking up this issue in the 105th Congress.

Senator SIMPSON. Now, we have our witnesses. Panel one, John Fonte, a visiting scholar of the American Enterprise Institute; Lawrence Harrison, a professor at the Massachusetts Institute of Technology; and Douglas Klusmeyer, editor of the Stanford Humanities Review.

If you would each take the time, as expressed-and this is not an investigative hearing, this is a learning hearing, so, please. In that order, please.

PANEL CONSISTING OF JOHN FONTE, VISITING SCHOLAR, AMERICAN ENTERPRISE INSTITUTE; LAWRENCE HARRISON, PROFESSOR, MASSACHUSETTS INSTITUTE OF TECHNOLOGY; AND DOUGLAS KLUSMEYER, EDITOR, STANFORD HUMANITIES REVIEW

STATEMENT OF JOHN FONTE

Mr. FONTE. Thank you, Senator Simpson, and Senator Kennedy. I will touch on three main points, the problem-the crisis of citizenship, what core principles should we enunciate, what should be ideal, and three, how these core principles relate to the policy is

sues.

Today, we face a crisis of citizenship. Until recently, it was widely believed that individual citizenship was central to American liberal democracy. Traditionally, membership in our democratic re

public is based on the rights and responsibilities of individual citizens who are equal under the law, and together form a self-governing free people.

Well, during the past few decades, many of us have listened to a different voice. It has affected our principles of citizenship and our naturalization policies.

This voice tells us that what matters most is not an individual citizen, but one's race, ethnicity, gender, or birth language. What matters is the group that one is born into, not the group that one freely chooses. What matters is not the individual American citizen operating through voluntary associations, but distinct races, peoples, ethnic groups with their own values, worldviews, histories, heritages, and languages, that often require different legal rights and different educational programs. Even the national history standards refer to the American "peoples," rather than the American people.

Not surprisingly, these cultural changes have affected the way we deal with immigrants. In the past our goal was clear-Americanization. Today, many oppose this ideal and favor some form of what is called multiculturalism. As a result, we are confusing the newcomers to our shores. It is not their fault; it is our fault. We should return to the core principles of constitutional liberal democracy. Citizenship means full membership in the American democratic republic.

Naturalization should serve the national interest. Our goal should be Americanization, stated clearly, without apology, and without embarrassment. Those of us in the private sector should probably start a national organization that would promote the concept of Americanization as the late Barbara Jordan, and others, on both sides of the immigration debate have suggested.

Americanization does not mean giving up all ethnic traditions, customs, cuisine, and birth languages. It means patriotic assimilation. This occurs when a newcomer essentially adopts American civic values and the American heritage.

For example, American philosophy Sidney Hook, son of Jewish immigrants from the czar's empire in the early 20th century, describes his school days as identification with 18th and 19th century Americans. He adopted Washington and Lincoln as his own. The fact that they were Anglo-Saxon Protestants had nothing to do with it. They were his ancestors, too.

Today, the multiculturalists tell us that Americans of Hispanic, African, and Asian descent could not possibly relate to dead white European males like Washington and Lincoln.

However, Professor Lawrence Fuchs described Japanese American students in Hawaii in the 1930's, speaking about "our Pilgrim forefathers." This is perhaps ironic, but in a larger sense it is true. The Pilgrims and the Founding Fathers are all our ancestors, regardless of when our families came to America or where we came from.

How this relates to the direct policy issues and the question of current naturalization requirements concerning English language ability and the understanding of U.S. history and Government, should they be increased or decreased? Well, they certainly should not be decreased. The current tests are not difficult.