• April 5, 2011

    Recent attacks on the constitutional principle of birthright citizenship by Tea Party members and supporters “require utter disregard for the express provisions of the Constitution,” and “encourage us to abandon the precise reasons behind those enactments,” asserts Constitutional Accountability Center Chief Counsel Elizabeth Wydra in her new ACS Issue Brief.

    In addition to the “powerfully plain” text of the Fourteenth Amendment, more than a century of case history and Congressional debate affirm that U.S. citizenship depends on the objective criterion of birthplace, rather than on parental status or membership in any race or ethnic group, Wydra explains in “Born Under the Constitution: Why Recent Attacks on Birthright Citizenship.” Springing out of the Civil War and the Dred Scott decision, the Framers of the Fourteenth Amendment “wisely” placed the conditions of citizenship “beyond ‘consent’ of the political majority at any given point in time.”

    Current efforts by Sen. Rand Paul, Sen. David Vitter, and the Arizona state legislature, among others, to undermine this constitutional right, while not unique, are fundamentally flawed, Wydra argues. Similar bills seeking to rescind birthright citizenship have been unsuccessfully introduced in Congress every year for more than a decade. She suggests that birthright citizenship has endured these challenges because of a historical and bipartisan willingness to elevate the conditions of citizenship above the political fray:

  • March 9, 2011
    Guest Post

    By Martha F. Davis Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis filed an amicus brief in Flores-Villar v. United States on behalf of Equality NOW, Human Rights Watch and other groups.
    As Americans mark the 100th anniversary of International Women's Day (IWD) on March 8, 2011, what better way to celebrate than eliminating the few remaining legal vestiges of women's historic second-class citizenship? And even better, why not do it in a way that helps men, too, by reaffirming their important role as parents and caretakers?

    There is no doubt that we've come a long way in a century. At the time of the first official IWD in 1911, women in the United States could not vote, were barred from serving in the military except as nurses, and lost their U.S. citizenship for the duration of the union if they married a foreign national. Now, of course, circumstances are much different. But there are some stubborn, lingering messages about women's civic roles. We can vote, but women are still barred from some combat positions in the military - positions that often serve as a step up to greater leadership roles. Women can enlist, but only men are required to register and participate in the Selective Service System, and are sometimes threatened with denial of educational loans if they fail to do so. Notably, while even Harvard Law School turned away the ROTC because of the military's discriminatory policies on gays, plain old sex discrimination in the military has not triggered such public outcry. There is tacit acceptance of the message that men are the primary warriors and heroes and that women's proper place is on the home front.

    This persistent stereotype also informs a venerable law currently being challenged before the U.S. Supreme Court in Flores-Villar v. U.S. Under that law, the U.S. citizen father of a foreign-born, out-of-wedlock child must jump through a series of hoops in order to transmit U.S. citizenship to his child, including providing proof that he resided in the U.S. for at least five years after his 14th birthday but before the child's birth. A U.S. citizen mother under the same circumstances must simply prove one year of residence at any time prior to the child's birth.

  • March 2, 2011
    Gathering once every two years, the Texas legislature is back in session, and quickly moving to siphon attention from Arizona as a state obsessed with creating rigid laws targeting undocumented workers. CNN reports that Texas lawmakers have introduced measures to make English the state's official language and to slap an 8 percent surcharge on "on all money wired from Texas to Latin America."

    But CNN and The Lookout blog highlight a bill introduced by a Rep. Debbie Riddle, a "tea party favorite," that would make it a crime to hire undocumented workers, unless those workers were hired to clean your house, mow the lawn and trim the hedges, or other house-related duties. CNN describes the measure, House Bill 2012, as "a tough immigration bill with a soft side that protects those who hire unauthorized immigrants ‘for the purpose of obtaining labor or other work to be performed exclusively or primarily at a single-family residence.'" If the undocumented worker is hired for any other reason, the employer is could face two years in prison and a $10,000 fine.

    State Rep. Aaron Pena told CNN, "With things as they are today, her bill [Riddle's] will see a large segment of the Texas population in prison," if were enacted without the household exemption.

    Dallas County Sheriff Lupe Valdez Riddle's bill if enacted with the exemption would still add "between 4,000 to 20,000 additional inmates in her jail, carrying an additional cost of more than $1.2 million," The Texas Tribune reported.

    State Rep. Riddle, The Lookout noted, drew media attention last year when "she claimed unnamed FBI officials had told that pregnant women from the Middle East were traveling to America as tourists to give birth, and then raising their children to be terrorists who could later enter the U.S. freely as citizens - so called ‘terror babies,' a devious offshoot of ‘anchor babies.'"

  • 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.

  • December 7, 2010
    Guest Post

    By Jennifer Chang Newell, a staff attorney for the ACLU Immigrants' Rights Project. Chang Newell recently participated in an ACS panel discussion on Chamber of Commerce v. Whiting, available here.
    Oral arguments in the first legal challenge to the recent wave of state and local anti-immigrant laws to reach the Supreme Court will be held this Wednesday. The case, Chamber of Commerce v. Whiting, involves a challenge to an Arizona state law that sanctions and penalizes businesses whom the state determines has employed workers not lawfully authorized to work in the United States. The challenged law imposes a potential business "death penalty" for employers found to have hired unauthorized workers and requires all Arizona employers to participate in an electronic employment verification system, e-Verify, that is voluntary under federal law. The case was brought by a coalition that includes the United States Chamber of Commerce, the American Civil Liberties Union, and other civil rights and business groups. The coalition asserts that the Arizona law conflicts with federal immigration law and violates the Supremacy Clause of the U.S. Constitution. The Acting Solicitor General of the United States, which submitted a key amicus curiae brief in support of the coalition's position, will also be arguing.

    The Backdrop: An Epidemic of State and Local Anti-Immigrant Laws Across the Country

    The challenge to the Arizona employer sanctions law provides the Supreme Court with its first opportunity to weigh in on the trend in recent years of states and localities fashioning their own local immigration laws. Over the past three years, hostility toward immigrants coupled with apparent frustration with the lack of federal immigration reform have inspired states and cities to propose and enact laws that attempt to make life difficult for "illegal aliens" by imposing a patchwork of local penalties. Hundreds of local anti-immigrant measures have been introduced across the country, including the other well-known Arizona anti-immigrant law, SB 1070 (currently the subject of a pending Ninth Circuit appeal). In addition to creating divergent employer sanctions schemes and mandating participation in the voluntary federal e-Verify program, these local immigration efforts have included prohibitions and penalties for the renting of apartments to allegedly unauthorized immigrants and even criminal laws that would prosecute immigrants or family members, friends, employers, and others who allegedly associate with undocumented immigrants.

    Where enacted, these laws have created a climate of hostility and racial profiling against immigrants, increased fear in immigrant communities, and caused immigrant families to flee to more welcoming communities. The harsh penalties in these laws have made employers and landlords wary of dealing with anyone who may look or sound foreign. In response to these many harms, the ACLU and other groups have gone to court to challenge these laws in numerous locations across the United States. Most notably, in September the Third Circuit struck down Hazleton, Pennsylvania's anti-immigrant employment and housing law, diverging with the Ninth Circuit's ruling below on the Arizona employer sanctions law in Whiting; a certiorari petition may be filed in the Hazleton case as well.

    The Issues before the Court in Whiting