Birthright Citizenship Review
Senate Republican Leader Mitch McConnell is joining others in his party in calling for a review of the 14th Amendment’s grant of birthright citizenship.
Senate Minority Leader Mitch McConnell (R-Ky.) officially supports a review of the 14th Amendment to the Constitution, which grants children of undocumented immigrants status as U.S. citizens, his office confirmed to the Huffington Post on Monday.
A spokesman said that the Kentucky Republican believes that “we should hold hearings” on the matter. McConnell had not previously commented on the issue before, the spokesman confirmed.
In offering his support, McConnell becomes the highest-ranking Republican figure to call for examining the reach of the 14th amendment. On Sunday, his chief deputy, Sen. John Kyl (R-Ariz.) told CBS’ Face the Nation that he too would back hearings into revising citizenship laws. Sen. Lindsey Graham (R-S.C.) — a one-time proponent of comprehensive immigration reform — has explicitly called for the 14th Amendment’s repeal.
The statements from GOP leaders give credence to the notion that revising longstanding citizenship laws is quickly becoming a plank of the party’s platform. In the House of Representatives, Rep. Lamar Smith (R-Tex.) has introduced the Birthright Citizenship Act of 2009, which would attempt to deny children of illegal immigrants U.S. citizenship through statute rather than a constitutional amendment (thereby lowering the vote threshold). He has 93 co-sponsors for that effort including Rep. Nathan Deal, the Georgia Republican who is in a runoff to be the party’s candidate for governor.
The Hill adds:
McConnell stopped short of echoing Graham’s call for repeal of the amendment.
“I think we ought to take a look at it — hold hearings, listen to the experts on it,” McConnell said. “I haven’t made a final decision about it, but that’s something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don’t think anybody thinks that’s something they’re comfortable with.”
Proponents of comprehensive immigration reform strongly oppose the Republican-led effort, which could play a major role in firing up both the left and right this election year.
The escalating debate on the 14th Amendment comes in the wake of the legal battle between Arizona and the federal government over the state’s immigration law.
Josh Marshall observes, “In a sense this isn’t surprising. Opposition to birthright citizenship — or as its called by anti-immigrant forces, ‘anchor babies’ — has been rising on the right for some time.” He terms the ploy “crass demagoguery.”
On the one hand, of course, it’s not up to Congress. One way or another: it depends on an interpretation of the 14th Amendment. So if it’s to be changed, the change has to come from the Supreme Court. More generally, though, I don’t think I’ve ever heard it seriously suggested that the 14th Amendment does not in fact guarantee citizenship to every one born in the USA.
He’s right. FindLaw summarizes the Supreme Court’s rulings on the matter:
The Court has accorded the first sentence of Sec. 1 a construction in accordance with the congressional intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship. 7 Congress’ intent in including the qualifying phrase ”and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, 8 as well as children of members of Indian tribes subject to tribal laws. 9 The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas. 10
In Afroyim v. Rusk, 11 a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. ”[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.” 12
[Footnote 8] Id. at 682.
[Footnote 10] United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).
[Footnote 11] 387 U.S. 253 (1967). Though the Court upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which by a five-to-four decision the Court upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’ power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60-62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion supra pp. 272-76. In the years before Afroyim, a series of decisions had curbed congressional power.
[Footnote 12] Afroyim v. Rusk, 387 U.S. 253, 262 -63 (1967). Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268.
While its main intent was to reverse Dred Scott’s notion that slaves weren’t citizens, the Court pretty quickly broadened the interpretation. Note that the key rulings date to the late 1800s, within the lifetime of those who wrote and passed the 14th Amendment.
I mostly agree with Josh on this, too:
One would think for these folks that the plain words of the Constitution would be enough to settle the matter. But apart from the Constitution and beyond all the ethical and prudential reasons why birthright citizenship is simply the right policy for the country to follow, consider what it protects against. In many European countries — Germany being perhaps the best example — you have substantial populations of stateless people. In Germany it’s the Turks who came legally or illegally as guest workers, then had children. And these children were born and raised in Germany, speak Germany, but aren’t German citizens. They aren’t Turkish citizens either. And culturally they’re no more Turks than Hispanic kids born in Los Angeles whose parents happened to have been born in Mexico.
This is why, for example, I oppose creation of a “guest worker” program. All legal immigrants to the United States should have a path to citizenship.
In principle, though, I see no reason why children of illegal immigrants should automatically have American citizenship and right to stay here. Rewarding bad behavior encourages more of it. And citizenship is a pretty big reward, indeed, given the lengths to which poor Mexicans will go to get across the border to live in constant fear of deportation. If someone sneaks across the border, gives birth, and is deported in the span of, say, a week, there’s no rationale I can conjure — aside from the technicalities of the 14th Amendment — that we owe the infant anything more than we owe any other Mexican baby.
But where does one draw the line? It would be a travesty to deport a 16-year-old born and raised in the United States, never knowing any other home, regardless of the parent’s legal status.
Further, this is too small a problem to justify tinkering with the Constitution. It’s not as if the birthright citizenship policy is the chief draw for illegal immigration in this country, or that we’d see any significant decrease in illegal border crossings if we changed the policy.