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Behind the Debate On Birthright Citizenship & the 14th Amendment

2010 November 20

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The paragraph quoted above is the text of Section 1 of the 14th Amendment of the United States Constitution, and it is under attack by some conservative forces in this country.  The 14th Amendment was adopted in 1868, largely in order to assure the African American population the rights of citizenship, and to overrule the Supreme Court Decision in Dred Scott v. Sanford–which in 1857 ruled that African American’s were not citizens, and therefore were not entitled to the rights and protections of citizenship.  The 14th Amendment is now under attack because some believe Section 1 provides a quick ticket to citizenship for illegal immigrants (specifically non-Caucasian) who have become the Right’s new favorite boogeyman (other than Muslims, Feminists, and Liberals etc.).  And for the purpose of this discussion “illegal immigrants” will refer to non-Caucasian illegal immigrants, as this group specifically is being targeted and vilified.

Much of this debate was sparked because immigration policy and enforcement in this country is broken and does not function effectively. Illegal immigrants enter this country in many ways, two of the most common are by over-staying a visa or by crossing the U.S.-Mexican (or U.S.-Canadian) border–both of which are huge, porous, and difficult to patrol (the U.S.-Mexican border is 1,969 miles long, the U.S.-Canadian border is 5,525 miles long.)  Illegal immigrants are being blamed for increasing crime rates (gangs, drugs, sex crimes, terrorism etc.), for taking jobs from Americans, and vague accusations that essentially amount to the argument that illegal immigrants are just ruining this country.  One of the ways in which illegal immigrants are apparently ruining the U.S. is by having babies here, children that because of the 14th Amendment, are American citizens.

Currently, there are many proposals to reform immigration policy in our country, and the most recent proposal is to repeal or revise Section 1 of the 14th Amendment.  The repeal/revision of Section 1–which has been dubbed “birthright citizenship”–was first proposed by Senator Lindsey Graham (R-SC).  Senator Graham stated

People come here to have babies,” Graham said. “They come here to drop a child — it’s called drop and leave. To have a child in America, they cross the border, they go to an emergency room, have a child and that child is automatically an American citizen. That shouldn’t be the case — that attracts people here for all the wrong reasons.

Senators John McCain (R-AZ), Mitch McConnell (R-KY), John Kyl (R-AZ), and Jeff Sessions (R-AL) have all echoed Senator Graham’s call for Senate hearings on whether changes should be made to the 14th Amendment to prevent what Senator Graham calls “drop and leave”.  While there is a serious need for immigration policy reform, the recent Republican dialog appears to me to be little more than scare tactics, trying to make the public think that hordes of illegal immigrants are swarming our borders so they can give birth in the United States and get a quick ticket to citizenship through their American-born children (or “anchor babies” as they have dubbed).  And indeed, upon investigation, the whole concept of “drop and leave” is not want the Republicans have presented it to be.

Children born of illegal immigrant parents cannot sponsor their parents for citizenship until they turn 21.  Additionally, if the parents of a United States citizen entered illegally, they cannot apply for legal residence for 10 years, according to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Giving birth to a child in the United States is not an easy, fast, or certain way for a child’s parents to gain Unites States citizenship.  When the fact-checking website PolitiFact.com tried to verify Senator’s Graham’s statement on “drop and leave”, they contacted his office, but Senator Graham’s staff  “could not provide any specific data on mothers who ‘drop and leave.’ ”  But they did direct PolitiFact to a number of news stories and reports on the birthrate of  undocumented immigrants in in the United States.

One of these reports is “A Portrait of Unauthorized Immigrants in the United States” by the Pew Hispanic Center.  The 2009 Pew study found that the numbers of illegal immigrants giving birth to children in the United States are indeed increasing.  Using data from the U.S. Census Bureau the study found that in 2008, 73% (4 million) of children born to undocumented immigrants were U.S. citizens, that’s up from 67.5%  in 2003 (2.7 million).  But while there is ample evidence that there is a large–and growing–number of citizen children being born to illegal immigrant parents, there is little but anecdotal evidence that illegal immigrants are coming to the U.S. with the intention of birthing children in the U.S. in order to gain citizenship or residency.

People immigrate to our country for many reasons, and while U.S. citizenship for children born here may be an incentive to come to the United States, so are jobs, better medical care, more educational opportunities, and public safety.  Repealing or revising Section 1 of the 14th Amendment will not be fix our immigration problems.  Former Attorney General Alberto Gonzales, in his opinion piece in the Washington Post said as much

Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis. People will certainly continue to cross our borders to find a better life, irrespective of the possibilities of U.S. citizenship.

As long as birthright citizenship is the law, it is inevitable that some people will come to the United States in order to give birth in here, but not all of the people who do this are illegal immigrants.  The depiction of the illegal immigrants coming to our country in order to “drop and leave” is not complete, because there is a whole industry that capitalizes on the 14th Amendment, and it’s known as birth tourism.  In birth tourism, services and “birth packages” are marketed to foreign mothers, who then come to the United States legally in order to give birth.

Perhaps Section 1 of the 14th Amendment should be revised, because under the repugnant tone of nativism and xenophobia that seems to shroud this debate, there seems to be real cause to reconsider birthright citizenship.  I think we can all agree that birth tourism is wrong, and that United States citizenship should not be a for-profit business.  But what about illegal immigrants?  Should the children they give birth to while in the United States be barred from receiving citizenship?  Should U.S. citizenship be contingent upon the citizenship/immigration status of one’s parents?  If the children of illegal immigrants are denied citizenship, we essentially solidify their place in a permanent immigrant underclass, which raises ethical issues.  The modification or revision of birthright citizenship is a complex issue legally and ethically, and it deserves serious attention and analysis, not more political posturing.

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