Congress Debates Birthright Citizenship

Congress is set to debate whether children of illegal immigrants should be U.S. citizens.

A proposal to change long-standing federal policy and deny citizenship to babies born to illegal immigrants on U.S. soil ran aground this month in Congress, but it is sure to resurface — kindling bitter debate even if it fails to become law. At issue is “birthright citizenship” — provided for since the Constitution’s 14th Amendment was ratified in 1868. Section 1 of that amendment, drafted with freed slaves in mind, says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Some conservatives in Congress, as well as advocacy groups seeking to crack down on illegal immigration, say the amendment has been misapplied over the years, that it was never intended to grant citizenship automatically to babies of illegal immigrants. Thus they contend that federal legislation, rather than a difficult-to-achieve constitutional amendment, would be sufficient to end birthright citizenship.

With more than 70 co-sponsors, Georgia Republican Rep. Nathan Deal tried to include a revocation of birthright citizenship in an immigration bill passed by the House in mid-December. GOP House leaders did not let the proposal come to a vote. “Most Americans feel it doesn’t make any sense for people to come into the country illegally, give birth and have a new U.S. citizen,” said Ira Mehlman of the Federation of American Immigration Reform, which backs Deal’s proposal. “But the advocates for illegal immigrants will make a fuss; they’ll claim you’re punishing the children, and I suspect the leadership doesn’t want to deal with that.” Deal has said he will continue pushing the issue, describing birthright citizenship as “a huge magnet” attracting illegal immigrants. He cited estimates — challenged by immigrant advocates — that roughly 10 percent of births in the United States, or close to 400,000 a year, are babies born to illegal immigrants.

[…]

According to a survey last month by Rasmussen Reports, a nonpartisan public opinion research firm, 49 percent of Americans favor ending birthright citizenship, and 41 percent favor keeping it. The margin of error was plus or minus 4 percentage points.

[…]

Some critics of current policy refer to U.S.-born children of illegal immigrants as “anchor babies” because — when they reach adulthood — they can sponsor their parents for legal permanent residency. Immigrants-rights groups say the number of such cases is smaller than critics allege, but authoritative statistics are scarce.

The “anchor baby” issue is rather silly; people being granted citizenship through the formal process are decidedly not the problem. It does, however, seem unfair that tens of thousands of people have to wait years to be granted citizenship through proper channels while the children of lawbreakers are immediately entitled to all the rights of citizenship. The policy, in effect, rewards people for crime. Indeed, it incentivizes crime given how much better off a poor baby from a Mexican border town will be if born a couple miles north.

Steve Benen is almost certainly right, though, that simple legislation is a non-starter on this issue. While the intent of those who wrote the 14th Amendment had nothing to do with immigration, illegal or otherwise, both the plain meaning of its language and the case law surrounding it make it clear that simply being born in the United States makes one a citizen.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. ken says:

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

    The plain language of the admendment does indeed contemplate application to immigrants. It says that an immigrants children, born in the US, are automatically citizens, irregardless of whether the immigrant goes through the naturalization process or not.

    If the admendment made no mention of naturalization then you might have an argument that the writers intention had nothing to do with immigration, legal or othewise.

    The writers were actually looking ahead with this admendment. They did not want to limit it just to freed slaves but to all persons within the US regardless of how they arrived.

    Just think. Without this provision we could have about half or more of our current population as non-citizens right now. Depending on how difficult they made process of naturalization over the last hundred years or so would determine how many of us would be citizens today.

  2. Thralan says:

    Good article and a good idea to make the citizenship birthright available only to children of parents legally in the United States. My understanding is that even Canada recognized the wisdom of this change and made it a few years ago.

  3. LJD says:

    Ken, some of the amendments were intended to be added to, removed, or interpreted as times change. I would think your liberal views would make that clear- or do you pick and choose the ones you like?

    So now you know what the framers were thinking when they wrote the Constitution? Wow. You should be on the Supreme Court!

    Half our current population? Not quite, but it will be soon if we keep going the way we are. There are LEGAL ways to enter the country Ken. If one enters LEGALLY and has a child here, they should be granted citizenship in accordance with the law. Why reward fence-jumpers, and in some cases criminals that no other country wants?

  4. Still a bad and dangerous idea

    James Joyner calls this debate silly. I’ll go further and call it dangerous. I’ve made my opinions known in posts here and here. Steve Benen clearly points out that Supreme Court precedent is not on the side of any changes proposed by Congress becaus…

  5. ken says:

    LDJ, when the writers included ‘naturalization, they included immigrants. Naturalization applies to no one but immigrants. This is evidence that this admendment was adapted with a forward looking view regarding the composition of our national citizenry. It was written at a time of huge influxes of immigrants.

    If you know anything about American history following the civil war, the western expansion, the development of the oil industry, industrialization, you would understand.

    Following a brutal civil war fought over the status of the lowest among us, the consensus among the winners was to try and prevent another sub-class of people from developing and being exploited. It might be hard to understand the idealism expressed by this admendment but remember the people who passed this admemdment just fought war over such values.

  6. ‘Birthright citizenship’ policy change illegals stirs debate

    A proposal to change long-standing federal policy and deny citizenship to babies born to illegal imm

  7. LJD says:

    Naturalization refers to one being admitted to citizenship. Admission does not mean free-entry, it means we get to regulate it. Especially in an era of international terror.

    400,000 U.S. citizens per year, with ILLEGAL parents, is an astounding figure. Those poor American children with criminals for parents.

    Interesting that you do not pay due respect to those who have waited in lines, filled out forms, and waited some more, to be LEGALLY admitted to the protections of the Constitution. Just hand it out to any one who can swim or tunnel their way in: drug traffickers, terrorists, violent criminals included.

  8. jimbo says:

    This is a fascist racist proposal. Like it or not, there is a huge demand for labor that can only be satisfied by immigrants. Immigrants increase our productivity. Throughout our history, those who have left their homeland to come here have been the best, the most ambitious. Their payroll taxes pay for the retirement of old white people by increasing the number of workers per retiree. The fascist racist elements in this country refuse to allow for an increase in the number of LEGAL immigrants needed to fill that demand for labor. In addition to being fascist and racist, restrictions on immigration are SUICIDAL. The result is that plenty of employers are offering jobs to illegal immigrants. They would not come here if they did not have jobs. It is bad enough that there are some who want to make criminals out of those who struggled to come here to do our dirty work. It is unconscionable that so many fascist racist members of congress want to bring back bastardy and turn children, even infants, into criminals. THIS IS INSANE. It is especially troubling that you, Mr. Joyner, seem to sympathize with this fascist racist cabal.

  9. James Joyner says:

    Jimbo: Your argument makes little sense. I don’t disagree that we should change our immigration law to acknowledge our desire for low-wage immigrants from the 3rd World. That really has nothing to do with whether infants, who tend not to be very good workers, should be given automatic citizenship pursuant to their parents commiting a crime.

  10. ICallMasICM says:

    I’m almost 100% sure the proposal needs to be go thru the legislative process and doesn’t have a racial component to it but I guess writing ‘fascist racist ‘ somehow makes the opposing viewpoint less valid.

  11. Boyd says:

    Jimbo, you also might want to expanding your apparently limited vocabulary of adjectives to include more than just “racist” and “fascist.” You know the old line about if all you have is a hammer, everything starts to look like a nail.

  12. Anderson says:

    Well, I actually have no problem with amending the Constitution to limit citizenship, so I guess I’m a fascist AND an America-hating liberal. I am large, I contain multitudes …

    Agreed however that the 14th as written isn’t subject to legislative revision. “Born or naturalized” is pretty darn clear.

  13. RA says:

    “and subject to the jurisdiction”

    Illegals are not subject to the jurisdiction. If they were they wouldn’t be here. If you have a green card you are subject to the jurisdition. This means your children will be citizens automatically.

    Children of illegals should not be citizens. Guest workers children should not be citizens. Its time to close the loopholes that will turn our country into a socialist, economic disaster by these unskilled uneducated Mexicans.

  14. ken says:

    Illegals are not subject to the jurisdiction.

    You shouldn’t show your stupidity in such an obvious manner.

  15. ken says:

    RA, I forgot to explain that only people with diplomatic immunity are outside the jurisdiction of our laws.

  16. Michael J says:

    I live in Las Vegas and drive to school pass a delapidated area with apartments that use to be pretty nice. Not it looks like a Tijuana Barrio, with Mexican Women pushing Baby Strollers with 2 or 3 other kids walking next to them,and they are usually Pregnant with another nino.I passed a Mexican man and woman the other day with their 9 kids behind them.Our population is already 40% Hispanic and growing daily. The numbers speak for themselves, We will NEVER recover from this unwanted invasion. We have no one to blame but our elected Politicians from LBJ thru Bush,with that 1965 Immigration act Traitor Ted Kennedy thrown in.The America that we once knew and loved is history, and all this talk about enforcing the Borders is more rhetorical Horseshit.Its to late to worry about “Birthright Citizenship” or any other of these Illegal immigration issues because the future is beyond obvious.WHy we have let a Third World Cesspool and their poor and illiterate population take over our Country is beyond comprehension,and these Politicians that have allowed it should be prosecuted for Treason.

  17. domingo arong says:

    Why is the phrase “and subject to the jurisdiction thereof” in the Citizenship Clause enclosed within a PAIR OF COMMAS, with the first comma placed before the coordinating conjunction “and”?