Debate Over "Birthright Citizenship" Opens Historical Wounds
By Kim Pearson on August 16, 2010
BlogHer Original Post
In May, I wrote about efforts by some state legislators and members of Congress to deny US citizenship to children born in the United States to parents lacking proof of legal US residency. Now, a prominent Republican Senator, Lindsey Graham, has rankled members of his own party and even prominent anti-immigration activists by suggesting it's time to change the 14th amendment to the Constitution, which guarantees citizenship to people "born or naturalized in the United States and subject to the jurisdiction thereof."
Graham's idea has drawn criticism from even ardent immigration hawks as former Ambassador Alan Keyes and former television anchor Lou Dobbs, and a Constitutional amendment is probably not politically feasible. However, Graham and a few other like-minded politicians have given credence to an argument that was once the exclusive province of the nep-Confederate movement and other elements of the extreme right wing.
Of "Birthright Tourism" and "Terror Babies"
Late last month, Graham told Fox News:
"We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen," he said Wednesday. "They come here to drop a child -- it's called 'drop and leave.' ... That attracts people here for all the wrong reasons."
According to an April 14, 2010 ABC news report, the practice Graham described, "birth tourism," "is difficult to track and largely anecdotal." (An analysis of ABC News' report by the liberal watchdog group Media Matters found it full of "contradictions, dubious claims" and "misleading sources.") Nor, according to a former high-ranking FBI agent, is there evidence to support Rep. Louis Gohmert's statement that some of these people are giving birth to "terror babies" who get American passports for their children so that they can return to the US and commit terrorist acts.
A report released last week by the Pew Hispanic Center estimates that in 2008, about 340,000 children were born in the US to parents lacking proof of legal residency. However, Cleveland.com columnist also notes that Mexican immigration to the US has declined since 2008, according to the same report.
That constitutes about 8 percent of the 4.3 million US births during that year. These children, along with the children born to so-called birth tourists, are pejoratively known as "anchor babies," because of the fact that as American citizens, they can petition to have their close relatives enter the US legally once they turn 21.
Parsing the Meaning of the Amendment
As Harvard Law professor Randall Kennedy recently explained to NPR, the 14th Amendment was originally adopted to extend citizenship to African Americans. Arizona State Senator Russell Pearce, the author of SB 1070, Arizona's controversial immigration control law, and right-wing organizations such as the Council of Conservative Citizens, argue that US-born children of undocumented immigrants do not have citizenship rights because they are not "subject to [US] jurisdiction." According to Kennedy, however, that phrase refers to a few narrow exceptions, such as the children of foreign diplomats. He added that case law supports the idea that children born here are citizens, even when their parents are ineligible for citizenship.
I confess that the focus on the "jurisdiction" phrase makes no logical sense to me. I'm not a lawyer, but I've always understood that if you were in another country, you were subject to its laws, unless you fit the kind of exceptions carved out by the 14th Amendment, a treaty or some other overriding authority. Otherwise, how could you enforce laws? Indeed, how can you even deport someone if you don't have legal authority over them?
Pearce is careful to say that he supports the 14th Amendment's extension of citizenship to former slaves and their descendants. However, his argument about the inapplicability of the amendment to the children of undocumented immigrants is echoed by those who insist that the entire amendment is unconstitutional because of the way it was ratified by Reconstruction-era legislatures, and because they say that such matters as citizenship and voting rights should be the province of the states.
In their book, Neo-Confederacy, A Critical Introduction, scholars Euan Hague, Heidi Beirich and Edward H. Sebestia explain some activists seeking to repeal the 14th Amendment are not only concerned with controlling immigration but with eliminating the justification for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In an essay titled, "An Understanding of Race," Hague and Sebesta contend:
"For neo-Confederates, the democratic process is actually unfair in that it balances opportunities rather than privileging those with prior residency."
Restrictive citizenship laws in historical context
Until a few decades ago, eligibility for immigration to the United States was based on such criteria as race, national origin and political beliefs. The Naturalization Act of 1790 said that only "free white persons" of "good moral character" who had lived in the country for at least two years could become citizens. That and subsequent acts led to a series of cases in which immigrants of various backgrounds, Native Americans and American-born people of mixed race tried to prove their whiteness in court in order to access the benefits of citizenship. Ian Haney Lopez traced these "racial justification cases in his fascinating and provocative book, White By Law: The Legal Construction of Race (NYU Press, 2006). Lopez notes that here, too, the position of former slaves was central:
"Debates about racial prerequisites for citizenship arose at the end of the Civil War when Senator Charles Sumner sought to expunge Dred Scott, the Supreme Court decision that held that blacks were not citizens, by striking any reference to race from the Naturalization statute. Hie efforts failed because of racial animosity in much of Congress toward Asians and Native Americans." (p.3)
This antipathy led to such measures as the 1882 Chinese Exclusion Act, which effectively barred Chinese immigration and naturalization for the next 50 years. The 1907 Expatriation Act stripped the citizenship of American women who married foreign men. That was partially repealed by the 1922 Cable Act, although marrying an Asian man would still cause the loss of American citizenship. The 1924 Oriental Exclusion Act barred the foreign-born children of American citizens of Chinese ancestry from entering the US.
This Harvard University hypertext timeline provides a great overview of the evolution of immigration law from 1790 through 1940. This essay by historian Marian Smith on the website of the US Citizenship and Immigration Service explains how the United States moved away from an immigration system based on national origins to a "preference system" designed to favor family members of current US residents and workers with needed skills.
The point of this historical overview is that the current constitutional standards for citizenship and naturalization are hard-won, which may be why even some conservatives are leery of tampering with them. As Alan Keyes put it, "The 14th Amendment is not something one should play with lightly:"
What Would Replace Birthright Citizenship?
Writing for the Institute for Southern Studies, Deirdre Ruscitti reports that changing the birthright citizenship provision of the Constitution would require every US citizen to "go through a lengthy bureaucratic process" to prove our right to be here. However, Ruscitti's sources agree with Harvard Law's Randall Kennedy that it's unlikely that an amendment will get the support of two-thirds of the members of Congress and three-quarters of the state legislatures, as required by law.
Despite the remoteness of the possibility, the idea has been put on the table at a time when economic anxiety is rife and anti-immigrant sentiment is widespread. If history is any guide, this could lead to even more restrictive proposals, and even more contentious debate about the true nature of the problem.