Less Than Citizens

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In a move contrary to the most cherished of American values, a band of ultraconservative activists is targeting the U.S.-born children of undocumented immigrants—and others—to score political points. Their stated objective is to overturn a bedrock constitutional right: the right of citizenship by birth on American soil.

Such efforts are unlikely to succeed, but they must be challenged because they strike at the core of what makes citizenship in this nation so unique, special, and coveted. Rooted in the post-Civil War reforms to reverse the infamous Dred Scott decision and establish birthright citizenship as a right of the then-recently emancipated black slaves, the 14th Amendment, ratified in 1868, guarantees that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

For all practical and legal purposes, the law is clear and settled. For more than a century, our nation’s courts have affirmed that the 14th Amendment means what it says—the fundamental measure of citizenship in the United States is rooted in the soil on which an American is born. It stands in direct opposition to notions that America is some sort of country club, a place where the vagaries of politics, prejudices, or popularity may recognize some and exclude others. Birthright citizenship is a profound American value.

Still, the matter is not dead in the eyes of some politicians. On January 25, 2011, Sens. Rand Paul (R-Ky.) and David Vitter (R-La.) introduced legislation to amend the Constitution and restrict citizenship to those newborns who can prove that one of their parents is a U.S. citizen, a legal immigrant, or an active member of the Armed Forces at the moment of the child’s birth. In what seems a coordinated effort, Republican lawmakers in the Arizona legislature and other state legislatures introduced bills aimed at blocking children born in the state to undocumented immigrants—as well as professional workers and other noncitizens with long-term visas—from claiming a right to citizenship. As Elizabeth Wydra points out for the American Constitution Society for Law and Policy, “[t]he goal, according to Arizona Representative John Kavanagh, a primary supporter of the legislation, is “to trigger . . . Supreme Court review of the phrase ‘subject to the jurisdiction thereof ’ in the 14th Amendment.”

Opportunistic politics helps explain the reasoning behind this attack on the Citizenship Clause of the Constitution. A broken national immigration system overlapping with a tepid economic recovery, featuring still-slow jobs growth creates an opening for some politicians to seek short-term electoral gains by demonizing immigrants. Nonetheless, numerous conservative politicians and scholars voice grave concerns about the political and policy ramifications of this tangent.

Case in point: Linda Chavez, a conservative Republican and chairman of the Center for Equal Opportunity, believes that such a political gambit is “a terrible idea.” She argues that not only is it bad politics for Republicans to champion a cause that alienates Latino voters, but “more importantly, ending birthright citizenship would fundamentally change what it means to be an American.”

It seems implausible, then, that even a conservative Supreme Court would accept the revisionist arguments necessary to end birthright citizenship. What’s more, the high steps needed to alter the Constitution suggest the conversations about revoking constitutional citizenship are little more than hot air. After all, constitutional changes are difficult to pass, requiring a two-thirds vote from both the U.S. House of Representatives and the U.S. Senate and approval by three-fourths of the state legislatures, or alternatively two-thirds of the state legislatures could propose an amendment at a constitutional convention, a procedure that has never been successful.

In short, the prospects for changing the nation’s birthright citizenship policies are farfetched. Nonetheless, the far right’s vision of this profoundly un-American position on birthright citizenship deserves to be unpacked. A retreat on birthright citizenship would set in motion a cascading effect of unforeseen, unintended, and unwanted consequences, among them:

  • “Big Brother” in every hospital delivery room – If birthright citizenship were repealed, some sort of federalized birth registry would have to be created and maintained in order to ensure that citizenship status is allocated properly. This burden would affect every family in America. The creation of a national birth registry would be an extraordinarily complicated and costly feat.
  • A new underclass of less-than-citizens – Many proponents of repealing birthright citizenship argue it would be a method to deter illegal immigration, but in fact repeal of birthright citizenship would increase the number of undocumented individuals within the United States. Some experts estimate that in one year, 2008, 340,000 children were born to at least one undocumented parent. The citizenship of each of those children would be called into question.
  • Women burdened with childbearing decisions depending on citizenship parentage – In fact, without statutory prompting, this has already occurred in Utah. Two state government workers sent the names of 1,300 people to law enforcement and the news media because they suspected them of being undocumented immigrants. The list included the due dates of pregnant women, practically an invitation for harassment, and most likely a violation of federal health privacy laws.
  • An America that is suddenly and deeply anti-immigrant – contrary to our historical heritage and core national values.

Without a doubt, amending the 14th Amendment to end birthright citizenship would create a fundamentally different America, one with dual (and inevitably “dueling”) classes of residents born here—citizens and less-than citizens. This is a dark vision of America—one that deserves to be exposed to the full light of day.

Note: This column was condensed from the author's larger report on this issue. To read it in its entirety, click here.