Should Children Born to Illegal Immigrants Automatically Become U.S. Citizens?

This is a RUSH transcript from "The O'Reilly Factor," August 3, 2010. This copy may not be in its final form and may be updated.

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BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight: If you are a young woman in a bar, you have absolutely no protection, according to a new ruling in a case involving "Girls Gone Wild."

But first, the anchor baby situation. Those are children born to illegal aliens, under the 14th Amendment, automatically become U.S. citizens. Here now, attorneys and Fox News analysts Kimberly Guilfoyle and Lis Wiehl. So Wiehl, there's a move to overturn this part of the 14th Amendment. Explain this to me.

LIS WIEHL, FOX NEWS LEGAL ANALYST: It's absolutely part of the 14th Amendment. The 14th Amendment says if you are born or naturalized in this country, no matter what your parentage, you are automatically a citizen, as long as you're subject to the jurisdiction of this country, which means if you get arrested or you have to pay taxes or anything like that, you're subject to the jurisdiction of this country. So any child born here under the 14th Amendment...

O'REILLY: Some right-wing commentators say that that subject to the jurisdiction of the country means that if you're an illegal alien you're not subject to the jurisdiction of the country. You don't belong here.

WIEHL: I don't believe that because in 1898 the Supreme Court ruled directly on point on this. And again in 18 -- sorry, 1982 they ruled for illegal aliens' children and their rights.

O'REILLY: So it was adjudicated twice by the Supreme Court?

WIEHL: Twice by the Supreme Court.

O'REILLY: Now, so if you wanted to overturn it, then you'd have to have...

WIEHL: Constitutional amendment.

O'REILLY: Two-thirds of the states would have to say we want this out of here.

WIEHL: And it can happen. I'm not saying it can't happen.

O'REILLY: That's the process. Do you agree?

KIMBERLY GUILFOYLE, FOX NEWS LEGAL ANALYST: I do agree. That is the process, and it's not going to happen. I think right now this is a political move because there's support. There's frustration over people being in the country illegally.

O'REILLY: Yes, the Republicans are driving it. Well, why wouldn't it happen? Why wouldn't they try to get a constitutional amendment?

GUILFOYLE: Ultimately it will not pass. It will not be popular. You can't be against babies. It's not a very popular position.

O'REILLY: So you think it's against babies. I don't know. I think public opinion knows it's a ruse, knows that this is a ruse for people to sneak in here, get their kid to be an American citizen so they can stay.

WIEHL: And it's not just poor illegal aliens that are coming. Also rich people coming in here and go -- coming to this country necessarily for that purpose. It's not just against poor...

O'REILLY: I might point out, because I am a student of history and a former high school history teacher, that this was passed to help emancipated slaves and disenfranchised Native Americans after they were dislocated. Right. They couldn't say, "Look, you're not a citizen. You've got to go back to Senegal." That's why we passed the amendment.

WIEHL: But Bill, you have always said we don't interpret the Constitution. We just apply it as it is.

O'REILLY: Listen, Wiehl, I'm not -- did you see me argue?

WIEHL: No. I'm just saying...

O'REILLY: I'm going to take issue with Guilfoyle a little bit.

GUILFOYLE: You want to take issue with me?

O'REILLY: I think you might -- you might be able to get two-thirds of the state saying, "We think it's a ruse. We've got to modify it." Maybe. I don't think it's going to happen.

GUILFOYLE: I think the 14th Amendment is sacrosanct. They're not going to mess with it...

O'REILLY: OK.

GUILFOYLE: ...ultimately. But we shall see.

O'REILLY: A woman in a bar, 20 years old. Shouldn't be in a bar anyway.

GUILFOYLE: Right.

O'REILLY: Fake ID. All right. The "Girls Gone Wild" crew in the bar. It's the kind of place where just people do whatever they want to do and they're shooting, OK? Girl gets in camera range. This isn't the girl, by the way. This is just generic. This is what they do in these bars, kind of stuff.

GUILFOYLE: Right.

O'REILLY: All right? "Girls Gone Wild" photographs the woman. Pick it up, Guilfoyle.

GUILFOYLE: Right. So then what happens is her husband's friend is sitting home having a Blockbuster night watching a "Girls Gone Wild" video, sees the wife and says, "Hey, buddy, your wife is topless."

O'REILLY: Your wife is on this video.

GUILFOYLE: Correct. Going wild and lifting up her shirt.

O'REILLY: Was she lifting it up? I thought somebody else had lifted it up.

GUILFOYLE: Well, nevertheless, it's a little unclear.

O'REILLY: It was lifted up...

GUILFOYLE: Lifted up.

O'REILLY: ...by someone.

GUILFOYLE: Pulled down by someone else.

O'REILLY: There she is on video, and anybody can watch it. She sues.

GUILFOYLE: She sues, wants $5 million. You're benefiting from this because this was a big video.

O'REILLY: "I didn't sign anything. I didn't sign a release. I didn't do anything." And she loses.

GUILFOYLE: She loses. But this is not something that is surprising because Joe Francis and "Girls Gone Wild" franchise, very successful, and it has also won in court. Girls have tried to do...

O'REILLY: OK. So what is the message from the judge, saying, "You -- if you're in a bar, you expect to be photographed"?

GUILFOYLE: How about going to Miss Manners, going to the library, pick up a book and learn how to have some class.

WIEHL: It wasn't from the judge. It was from the jury who came back and said...

O'REILLY: The jury?

WIEHL: ..."We realize that you did not sign a consent for this and that was -- you should have signed a consent and that was wrong. But when you go to a bar and you know you're being photographed, and your tank top is taken down and you still dance…"

O'REILLY: But what if you didn't take it down? Somebody took it down...

WIEHL: But she's still dancing. I mean, pull up your tank top and go to management.

O'REILLY: Someone took it down, but she didn't stop the boogaloo? She was continuing on doing the Macarena or whatever she was doing. At the time she wasn't screaming or yelling, you know, "I'm being assaulted"?

GUILFOYLE: She's having a good time.

O'REILLY: Having a good time.

GUILFOYLE: Twenty years old.

O'REILLY: So the jury said, "If you're having a good time there, don't come back to sue for $5 million."

WIEHL: She was 20 years old and single at the time.

O'REILLY: But it's a lesson learned if you're going to go to one of these places, anything can happen.

GUILFOYLE: Don't free boob it. And in fact...

WIEHL: What did you say?

O'REILLY: I don't know what she said either.

GUILFOYLE: It was a technical term.

O'REILLY: And now I'm getting out of here.

WIEHL: What?

O'REILLY: Ladies, thanks very much.

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