Birthright Citizenship

  • April 27, 2011

    “‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

    The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

    Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislative history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

    During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

    During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

    This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

    ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

    Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.

  • January 5, 2011
    Guest Post

    Editor's Note: Elizabeth Wydra authored an ACS Issue Brief on the 14th Amendment's birthright citizenship clause and the efforts by some Tea Party groups and others to undermine the clause, which provides citizenship to babies born on American soil. Wydra is updating the Issue Brief, which will be released later this year. In light of the ongoing movement to curtail the citizenship clause, we are re-posting Wydra's blog post regarding her Issue Brief, "Birthright Citizenship: A Constitutional Guarantee."

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
    The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.

    Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally; in California, signatures are being gathered for a ballot proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.

    The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.

  • 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.