January 26, 2011 15:24 Age: 3 yrs

FACULTY VOICES: Birthright Citizenship in the United States

By: Polly J. Price 86C 86G

In ongoing debates over immigration reform, some politicians have expressed the desire to change the grant of U.S. citizenship to anyone born within its borders. This practice, known as “birthright citizenship,” emanates from the first sentence of the 14th Amendment: “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.”

The Dred Scott decision in 1857 held that descendants of slaves could not become U.S. citizens. After the Civil War, a provision guaran­teeing citizenship at birth to all persons born within the United States was deemed necessary to extend citizen­ship and civil rights to former slaves. It was the party of Lincoln—the Republican Party—that oversaw ratification of the 14th Amendment.

The United States is not unique. Canada and most Latin American countries also accord territorial birthright citizenship. Most of Europe, by contrast, awards citizen­ship based on the status of one or both parents. In recent decades, Great Britain, Ireland and Australia have moved away from territorial birthright citizenship.

Proposals to change birthright citizenship in this country aim to exclude children of undoc­umented aliens from automatically acquiring U.S. citizenship. Proponents usually cite the “anchor baby” draw—women who supposedly enter the country illegally to give birth and thus remain with their citizen child.

But the “anchor baby” concept is a myth. The United States routinely deports parents of citizen children when they are in violation of immigration laws. Often the citizen child, if a minor, goes with them. The citizen child at age 21 has the right to return to the United States, and at that time can petition the attorney gen­eral for U.S. residency for his or her parents. But if the parent had previously been deported for immigration violations, the petition is likely to be denied. Recently, the United States has deported as many as 22,000 parents of citizen children per year.

Further, while the Pew Hispanic Center reported that 8 percent of births in the United States in 2008 were to illegal immigrant parents, very few of those parents were recent arrivals. Of the estimated 11 million undocu­mented aliens in the United States, many have lived here for a considerable period.

The debate over birthright citizenship has two camps: those who believe Congress has the authority to limit birthright citizenship by statute, and those who insist a constitu­tional amendment is required. The attrac­tion of congressional authority is obvious. It is extremely difficult to amend the U.S. Constitution, requiring two-thirds approval of both congressional houses, as well as ratifica­tion by three-fourths of the states. In the past, the Republican Party called for a constitutional amendment in its platform. The view that Congress could accomplish the same thing by legislation is of recent origin.

Most legal scholars conclude Congress has no such authority because the language of the 14th Amendment is clear. Any per­son—regardless of their parents—acquires citizenship at birth so long as he or she is “subject to the jurisdiction” of the United States. Proponents of congressional author­ity reason that, because the parents are in the country illegally, they are not “subject to the jurisdiction” of the United States. But undocu­mented aliens surely are subject to all manner of U.S. law when they are here, rather than the law of their country of origin. It is a tortured reading of the plain language to conclude the 14th Amendment does not mean what it says. If an undocumented alien breaks a law, would the proponents insist we could not put that person in jail?

The second argument in favor of congres­sional authority is closer to an “original intent” argument, one that rejects the clear language of the 14th Amendment in favor of what is said to be the understanding of at least some congressmen who voted for it in 1868. But it is clear enough from that time that the phrase “subject to the jurisdiction thereof” was intended to exclude Native Americans born on tribal land and children of diplomats, consis­tent with international practices.

True, there was no category of “illegal immigrants” in 1868, but there soon would be. One such law, known as the “Chinese Exclusion Act,” was rejected by the U.S. Supreme Court in 1898 as a basis to deny citizenship to a child born to Chinese subjects while residing in California.

If the Constitution were to be amended to exclude children of undocumented aliens from citizenship, what are the practical implica­tions? First, proving one’s citizenship becomes more complicated than producing a birth certificate, because the citizenship status of one’s parents also would need to be proved. Great Britain addressed this problem through national identity cards for all citizens.

Second, denying citizenship status to children of undocumented aliens potentially creates statelessness, if the parent’s nation will not claim them. Third, if a large segment of the population has an undocumented status, this nation would create a permanent underclass of persons who are born here and live here all their lives, but who do not have the opportu­nity to become citizens.

The physical location of one’s birth may be an accident, but the citizenship status that results has been a deeply held principle of jus­tice in this country since the end of slavery.

Polly J. Price 86C 86G, professor of law and associated faculty with the Department of History, teaches torts, legislation and regulation American legal history, and Latin American legal systems. Her publications include Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench (Prometheus Books 2009) and “Natural Law and Birthright Citizenship in Calvin’s Case (1608),” 9 Yale Journal of Law & the Humanities 73 – 145 (1997).

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