Birthright Citizenship

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By Billy Corriher. Mr. Corriher is a 2010 ACS Public Interest Fellow and 2009 graduate of Georgia State University College of Law.

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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.

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.