Birthright Citizenship

  • August 20, 2010
    Alberto Gonzales is not making news when he calls the nation's immigration system broken. The current administration and other individuals and entities say the same thing about the nation's system of handling undocumented workers and families.

    But, the former Attorney General, who left his post during the George W. Bush administration because of increasing tensions with Congress and some outrageously poor legal advice, such as maintaining that the Geneva Conventions' restrictions on interrogating military detainees do not apply to America's war efforts in Iraq and Afghanistan, has offered more opposition to talk of undoing the Constitution's 14th Amendment.

    In a column for The Washington Post, Gonzales adds his voice to other conservatives who have come out against Sen. Lindsey Graham's argument that the 14th Amendment's citizenship clause should be repealed. That clause guarantees citizenship to anyone born in the country regardless of race, color or status of one's parents or ancestors. As noted by Professor Garrett Epps in a piece for The Atlantic, Graham's call for trashing the 14th Amendment, which was joined by a gaggle of other conservative senators, is all about riling voters during the midterm elections, noting that talk of constitutional amendments often crops up during election time (think Bush I's promotion of an amendment to ban flag burning, and Bush II's use of the federal marriage amendment).

    Gonzales says he opposes amending the constitution because such action "should be reserved for extraordinary circumstances that we cannot address effectively through legislation or regulation. Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis."

    He continues that an immigration policy, among other things, should "promote commerce and strengthen our economy."

    For more discussion on immigration reform watch video of a discussion between Labor Secretary Hilda L. Solis and the AFL-CIO's Richard Trumka here. Video of a plenary panel discussion at the 2010 ACS National Convention, "Immigration Reform: Congress and the States," is here.

  • August 17, 2010
    Guest Post

    By Billy Corriher. Mr. Corriher is a 2010 ACS Public Interest Fellow and 2009 graduate of Georgia State University College of Law.
    A recent study from the nonpartisan Pew Hispanic Center found that, in 2008, eight percent of the children born in the U.S. had at least one parent who was an undocumented immigrant. If some Republican senators would have their way, however, those children would be forced to live in the shadows of our society, like their undocumented parents.

    The 14th Amendment guarantees that anyone born in the United States is a citizen entitled to all of the rights and privileges associated with citizenship. Senator Lindsey Graham recently made headlines for calling this first clause of the 14th Amendment "a mistake." In a Fox News interview, Graham said, "We can't just have people swimming across the river having children here - that's chaos." Graham and other Republicans have proposed that we repeal the "birthright citizenship" clause.

    After the Civil War, Congress passed the 13th Amendment to eradicate slavery, and the 14th Amendment guaranteed that children of freed slaves would be considered citizens. The 14th amendment also overruled the Supreme Court's iniquitous Dred Scott decision, which held that black persons could never be citizens of the United States. For the past 150 years, all persons born in the United States, regardless of color or ancestry, have been considered citizens. Now, Graham says he wants to change this because illegal immigrants "come here to drop a child."

    The idea that the 14th Amendment serves as an incentive for illegal immigration is preposterous. The Pew Hispanic Center study found that over 80 percent of the mothers had been in the United States for more than a year, and over half have been here for over five years. The only incentive that immigrants need is the opportunity to build a better future. For 150 years, hard working immigrants have viewed America as the Promised Land, and they came here to build this country with their hands.

  • August 11, 2010
    Congressional conservatives' call for repealing or examining the possibility of undoing the citizenship clause of the 14th Amendment continues to draw sharp scrutiny and even some befuddlement.

    In a column for The Washington Post, Harold Meyerson tags the "Republican war on the 14th Amendment" as one against Latino voters who may pose a threat to the GOP.

    Meyerson writes:

    By proposing to revoke the citizenship of the estimated 4 million U.S.-born children of undocumented immigrants - and, presumably, the children's children and so on down the line - Republicans are calling for more than the creation of a permanent noncitizen caste. They are endeavoring to solve what is probably their most crippling long-term political dilemma: the racial diversification of the electorate. Not to put too fine a point on it, they are trying to preserve their political prospects as a white folks' party in an increasingly multicolored land.

    As noted by Meyerson, recently Post columnist E.J. Dionne wondered whether Republicans leading the attacking on the Constitution's clause that guarantees citizenship to all born here "really want to endanger your party's greatest political legacy by turning the 14th Amendment to our Constitution into an excuse of election-year ugliness?"

    In a follow-up to his stinging critique of leading Republicans' attacks on the citizenship clause, University of Baltimore School of Law Professor Garrett Epps, notes in another piece for the Atlantic "a powerful movement urging Congress and the courts simply to ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status."

    Epps writes:

    When (as even its supposed proponents know will happen) the constitutional amendment proposal is dropped after the election, there will remain demand that the courts simply re-interpret the Clause.

    As a matter of constitutional interpretation, it ought to be a tough sell. The language of the Clause is pretty sweeping: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But the nativist right has begun to explain that the "original intent" of the Clause is different from what it says.

    "Originalism" in this context means the use of clever arguments and partial quotations to eradicate the actual text of an argument. I mean no disrespect to the many fine scholars who work hard to recover the "original public understanding" of the Constitution's language. Their work is often provocative and valuable, even if rarely conclusive. But the rhetoric of "original intent" is sometimes misused by very unscholarly figures as a tool to silence questions about far-right constitutional theories.

    A clear text, like the Citizenship Clause, can slowly be covered over by barnacles of quibble and questionable historical assertion, until legislators and even judges are convinced that it can't mean what it says. This stealth technique of legal change illustrates a saying of that wise old psychologist, Samuel Johnson: "Reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.''

    For additional analysis of the 14th Amendment and the Reconstruction era, see Stanford Law School Professor Pamela Karlan's comments at a 2010 ACS National Convention plenary panel discussion here.

  • August 10, 2010
    Following a tired and cynical election-year tactic politicians are openly talking about amending the Constitution, writes University of Baltimore School of Law Professor Garrett Epps for the Atlantic.

    Like amendments promoted to ban flag burning and restrict marriage, senators, such as Lindsey Graham of South Carolina of have garnered national attention for disparaging the citizenship clause of the 14th Amendment, suggesting its repeal or hearings to consider altering it. The clause guarantees citizenship to all people born in the United States.

    Epps writes that these lawmakers are showing "contempt for the document American office holders are sworn to uphold," and that too many citizens and "even some judges, seem not to understand the function of this amendment. It is, not to put too fine a point on it, the part of the Constitution that makes America a democracy. We meddle with it at our peril."

    Epps continues:

    The Fourteenth Amendment is the only place in the Constitution where the idea of human equality is recognized. Certainly the Framers of 1787 never endorsed it: they constructed a government with classes of people carefully defined in a hierarchy, beginning with "free persons" and descending through "Indians not taxed" to "other persons," the noxious euphemism they used for "slaves." They put in place a Bill of Rights that limited the federal government but placed no bar in the path of oppressive state laws restricting free speech, voting rights, or due process.

    At the end of the Civil War, the victorious Union Congress created an amendment (by far the longest and most important in the Constitution) to ensure democratic politics and human rights wherever the American flag flies. Section One of the Amendment does the following. First, it makes every person born in the U.S. a citizen of the nation and of the state in which he or she lives. (This reversed the Supreme Court's Dred Scott decision that citizenship was a gift of the majority to favored groups or races.) Second, it applies the Bill of Rights to all persons in the states; and third, it bars any state from denying any person "the equal protection of the laws."

    The professor notes that if the nation were to support yanking citizenship from "children born here, we create a new class of untouchables, born to suffer and serve."

    He continues, "The children of immigrants are, whether their parents are ‘legal' or ‘illegal,' our fellow Americans. They've violated no law, and committed no crime."

    During a panel discussion at the 2010 ACS National Convention on the roles of Congress and the Courts, Pamela Karlan, a Stanford Law School professor, noted that the Reconstruction Amendments - the 13th, 14th and 15th Amendments - provided "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection, and the due process clause." The framers of the Reconstruction Amendments, Karlan continued, "gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off the fumes of Brown against Board of Education, that's why it has such power in country." But Karlan noted, during the middle of Reconstruction, the high court, was "living off the fumes of Dred Scott," and the high court "was not the place you went to get equality, you went to the legislature." See here for video of the entire panel discussion.

  • August 9, 2010
    Guest Post

    Editor's Note: The following essay was originally published as a "Perspective," in the June 9 edition of the Los Angeles Daily Journal and is reprinted with the permission of Daily Journal Corp. (2010). Following the post is an addendum for ACSblog, in which Professor Bryan H. Wildenthal offers additional thoughts on the recent Republican proposals to amend, or consider amending, the 14th Amendment Citizenship Clause.


    By Bryan H. Wildenthal, Professor of Law, Thomas Jefferson School of Law in San Diego, Calif. Professor Wildenthal has published several major articles on the history and meaning of the 14th Amendment, one of which was cited five times by the U.S. Supreme Court in McDonald v. Chicago, 130 S.Ct. 3020 (2010); id. at 3033 n. 10 (Opinion of the Court by Alito, J.) (two citations); id at 3072 n. 10, 3073 n.12, and 3079 (Thomas, J., concurring in part and concurring in judgment).

    Should children born on American soil obtain "birthright" U.S. citizenship, even if their parents are not legal immigrants? Rep. Duncan D. Hunter, (R-CA), and "Tea Party" Republican Rand Paul, the Kentucky U.S. Senate candidate, are among many who say no. Hunter is co-sponsor of a bill seeking to strip citizenship from all future children born to non-citizens (even those legally residing here on student or work visas), unless at least one parent has legal permanent residence or serves in the U.S. armed forces. The bill is perversely numbered H.R. 1868, for the year the 14th Amendment to our Constitution was ratified. That great amendment, which built upon our Bill of Rights, defines citizenship and guarantees the basic rights of both citizens and all "persons" (including non-citizens). It declares, in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

    So-called "conservative" politicians, and especially "Tea Party" activists, claim to respect the "original meaning" of our Constitution, and criticize liberals and progressives for allegedly failing to do so. But it is right-wing radicals like Paul and Hunter who should pay closer attention to the text and history of the Constitution, which stand flatly opposed to their views. H.R. 1868 would betray and violate the core meaning of the 14th Amendment.

    This issue was settled more than a century ago. The Supreme Court, in U.S. v. Wong Kim Ark (1898), rejected the idea that the status of parents (in that case, Chinese immigrants ineligible for U.S. citizenship and allegedly "subject" to a "foreign power") barred citizenship for their children born under American jurisdiction. The 19th century cases, like the original debates over the 14th Amendment in 1866-1868, make clear that only a handful of narrow exceptions apply to the concept of "jurisdiction" -- mainly children born to foreigners with diplomatic immunity or within America's Indian Nations as they existed at that time. (Tribal member Native Americans, while generally subject to federal jurisdiction today, were mostly not considered U.S. citizens in the 19th century; they were fully naturalized only in 1924.)

    No one can seriously dispute that an illegal immigrant is "subject to [U.S.] jurisdiction." How else would this country have jurisdiction to arrest and deport such immigrants, or prosecute them for immigration or other crimes they may commit, as the federal and state governments routinely do?