10 Reasons Amending the Constitution to End Birthright Citizenship Is a Terrible Idea

Author: on 08/09/2010


guest blogger Greg Siskind, AILA Board of Governors

One of the greatest accomplishments of the Republican Party was actually one of its earliest. After winning the Civil War and freeing the slaves, the Grand Old Party worked to pass the 14th Amendment to the Constitution, the bedrock of civil rights protections in the U.S. that has served as a model to democracies around the world. The accomplishment was so significant that the GOP touts it in its list of greatest accomplishments   (http://www.gop.com/index.php/learn/accomplishment/).

So it is, of course, shocking that in the days following the defeat of the Arizona law by a judge in that state, a number of Republican Senators have come forth calling for the repeal of the 14th Amendment’s provisions on birthright citizenship.

The 14th Amendment guarantees that all children born in the U.S. (with narrow exceptions for children born to diplomats) are U.S. citizens. While some have argued that the 14th Amendment doesn’t clearly protect birthright citizenship, this has been established law for more than a century. The Supreme Court removed any doubt of this in the 1898 United States v. Wong Kim Ark case where, by a 6-2 majority, the Supreme Court held that:

The fourteenth amendment reaffirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single exception of children of members of the Indian tribes owing direct allegiance to their several tribes… To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treats as citizens of the United States.


Nearly three decades ago, the Supreme Court relied on Wing Kim Ark in the case of Plyler v. Doe to make clear that the 14th Amendment applies to ALL persons born in the U.S., whether their parents are legally present or not.

Extremists have been complaining about so-called “anchor babies” for some time. To listen to them, one would assume that millions of these children are growing up in America today or will one day choose to exercise their citizenship rights and enter the U.S. Few except politicians on the fringe were willing to support the extremists. But in the last several days, a number of lawmakers have lost their inhibitions and are openly calling for a Constitutional Amendment.

Once the shock of the suggestion wears off, it does pay to at least think about some of the basic reasons why we need to steer clear of an Amendment. Here are a number of reasons why.

1. This is a “solution in search of a problem.”

To hear Lindsey Graham’s and his allies’ description of “drop and leave,” Americans understandably might assume that there are millions of people coming to the U.S. to have children. Is there really any truth to this allegation?

The anti-14th Amendment folks simultaneously talk about two groups of individuals when discussing amending the Constitution. One is the group of mothers that is illegally present in the U.S. having children and the second are mothers who come on so-called “birth tourism” packages legally to the U.S. so they can claim citizenship for their kids.

On the first issue, there is little evidence that a significant number of mothers illegally enter the U.S. for the purpose of having children. The burden of proof should be on proponents of tinkering with one of the cornerstones of American democracy. Before changing the Constitution, we should have clear evidence that there is a problem rather than the anecdotes of politicians pushing an anti-immigrant agenda.

It is true that many mothers here illegally do have children, but their purpose for being in the U.S. is generally to work or to be with a family member who is the breadwinner. This is probably the group that Graham is targeting and he should be honest in saying that the goal is to punish people who are here illegally and to disenfranchise their children as opposed to stopping a mythical “drop and leave” crisis.

As for maternity tourism, there is actual real evidence to point to that shows that this problem is miniscule. According to the Center for Health Care Statistics, fewer than 7,500 births out of an annual 4,000,000 births are to mothers who report residing outside the country. And some of those mothers are U.S. citizens residing abroad as part of the community of 6,000,000 Americans who live overseas.

And perhaps the reason so few mothers come to the U.S. just to have a child is because the immigration benefits are not what these Republicans would have people believe. Children born in the United States cannot sponsor their parents for immigration benefits until after they turn 21 years of age.

Nevertheless, to the extent that there is a “maternity tourism” industry, the better approach to dealing with this is to enforce our existing laws that bar the use of visitor visas for such a purpose. Targeting companies and individuals engaged in this type of visa fraud would go a long way to curtailing this sort of activity.

2. Ending birthright citizenship would not end illegal immigration.

There is no evidence that immigrants come to the United States to have children. They come for jobs. Taking away birthright citizenship would not change this. What would happen is the number of illegally present immigrants would increase dramatically as many children of illegal immigrants are added to the ranks of the illegally present and who knows how many others would be added to the list of the undocumented because they are unable to prove citizenship even if they are entitled to it.

3. Implementing a Drastic Change to the 14th Amendment Would Be Enormously Difficult to Administer and Hugely Expensive.

Because U.S. citizenship laws are so complex and all Americans would no longer have the most basic proof of citizenship – the birth certificate – available, most would have to go through a legal process that would be expensive for the government and the individual. The government would need to hire thousands of lawyers and other examiners, and individuals would also need thousands of new lawyers to help with this process once we get through years of litigation to determine how we actually define citizenship and what is a fair way to prove it.

4. Where exactly do you draw the line?

One of the biggest potential problems with looking at something of this sort is figuring out which population to target. Just the children of illegally present immigrants? What about when one of the parents is a citizen and one is an illegally present immigrant? What about when the parents are unmarried. Does it matter if the father is the citizen as opposed to the mother? If not, in situations where the mother is not legally present and she is not married to the U.S. citizen father, the mother would need to first prove the paternity of the child, something that could be difficult or impossible particularly for individuals without the means to sue for paternity. Should it make a difference if the legally present parent is a lawful permanent resident and not a citizen? How about a legally present non-immigrant?

If the target is broader and we’re going after anyone whose parents are not permanent residents or citizens, does it matter what type of non-immigrant status the person holds? Should a tourist be treated differently than a student or a non-immigrant work visa holder? What about people working on non-immigrant visas but waiting on long lines for permanent residency such as Indian and Chinese advanced degree holders?

5. The citizenship of millions of Americans would suddenly come into doubt.

If birth in the United States is no longer proof of citizenship, a great number of people would have great difficulty proving they are entitled to citizenship. People would face extraordinary administrative obstacles and be forced to hire lawyers to prove entitlement to citizenship. Waits for passports would be extremely lengthy since for all people it would be the main way to prove they are American. Right now there is no registry of U.S. citizens and people generally rely on proving their birth in the U.S. to demonstrate citizenship. One survey by the Brennan Center at New York University found that more than 13 million people would not be easily able to prove their citizenship.

Many other questions would also naturally arise. What about the grandchildren of illegal immigrants? As noted above, figuring out what to do when one of the parents is legal and the other not raises a number of questions over how citizenship is transmitted in the absence of birthright acquisition. If citizenship is not defined by being born in the U.S., then how does one acquire citizenship? For most African Americans, citizenship was likely originally acquired in their families because of the 14th Amendment itself. Are only individuals who immigrated going to qualify? What about Native Americans?

A Pandora’s Box if there ever was one.

6. The American system of assimilating immigrants that has worked successfully for generations would be put under serious threat by creating a permanent two-tiered society with a permanent new underclass.

Taking away citizenship from the children of immigrants would mean more than just not being able to cast votes in elections. It means no driver’s licenses, no in-state tuition, no ability to work legally and so on. Instead, we would have a class of individuals with no real connection to any country other than the U.S., but no ability to become productive participants in our society. This new stateless class would be forced to live in the shadows. For some, they won’t be deportable because their parents’ countries are not legally obligated to take them. This new stateless group of individuals would be stuck in a limbo of not being able to participate in American society but having no other country to which to go as an alternative. Such individuals would be vulnerable to exploitation and criminal activity.

7. It’s a slap in the face to African Americans

After the Civil War, there were many, including President Andrew Johnson, who were prepared to continue to deny citizenship to slaves and their newly freed children because they were not “ready” to take on the responsibilities of citizenship. The Fourteenth Amendment guaranteed that no class of individuals would ever have to show they were up to snuff when it came to deserving citizenship, and it is the Fourteenth Amendment that has been the basis of major civil rights progress in the area of voter rights, equal access to justice, protection against workplace discrimination, etc.

The idea of scrapping birthright citizenship has been the cornerstone of nativist and racist organizations for some time and the fact that supposedly mainstream Republicans have suddenly started discussing this topic in polite company doesn’t make it less offensive. The sacrifice of countless individuals who gave their lives to win these rights is not honored by even having this discussion.

8. Birthright citizenship is in the Constitution precisely to avoid “the tyranny of the masses.”

The 14th Amendment is in place precisely to protect individuals from politicians with their own interests in mind as well as the sentiments of the time. The Constitution has only been amended 17 times since the Bill of Rights and never to take away civil rights from any class of people. The framers of the 14th Amendment made birthright citizenship an “inalienable” right and tampering with this really places into question whether our American system of rights and freedoms has been a failure.

9. Where do they stop?

The 14th Amendment has been in place since just after the Civil War and no Congress has ever opened the door to cutting out groups from its protection. Today the discussion involves the children of those illegally in the U.S. Some proposals seek to bar the children of anyone but lawful permanent residents and U.S. citizens. But what is to say that we don’t then move to stripping out other children of those who do not “deserve” to have their children awarded U.S. citizenship. Perhaps deny birthright citizenship to the children of those with criminal records? How about the children of same sex couples? What about where the parents express “anti-American” views? The folks pushing to repeal the 14th Amendment birthright citizenship rules are doing so to punish the behavior of the parents. Once we open the door, is it really that hard to envision pushing to add more and more groups?

10. Do we really want to start deporting babies?

That’s essentially what this proposal means. Is this really something our society has the stomach to do and is this really what Americans want to spend our tax dollars pursuing?

Even having a serious debate about this subject has the potential to tear society apart and the grownups in the GOP need to seize control and make it clear that the party does not endorse the idea. Aside from being the morally right thing to do, it’s also smart politics. At this point, the GOP is on the verge of so offending Hispanic voters in order to appease a tiny segment of the public that they risk losing the trust of Hispanics for generations.

6 Comments

  1. Stuart Folinsky says:

    I would expand upon point 7 a little bit. The 14th Amendment is not just part of the emancipation of the slaves — it was also a reaction in general to the Civil War. I often posit this question: Was Robert E. Lee a traitor to the United States or was he a patriotic citizen of Virginia? I believe that “citizenship” was so vague that the framers of the amendment wanted a “bright line” test.

    It pays to note that the Supreme Court that gave us Wong Kim Ark also gave us Plessy v Ferguson. I believe that racism really did not bother that Court. However, that Court had living memory of the Civil War. I believe they knew that the fuzzy definition of United States Citizenship caused 3/4 million deaths.

  2. marcellis says:

    I was a Republican until the day before yesterday.

    BTW, I read US v. Wong Kim Ark last night along with the current WIKI entry
    on birthright citizenship.

    There is a lot of stupid misinformation out there.

    INA 301(a) is crystal clear as written.

    The Wong case is reasonably clear by-the-time you plow all the way to the holding.
    But the WIKI entry’s description of the Wong holding is troubling. It adds two requirements
    onto the Wong holding that are not found anywhere in the INA.

    Note lines 3 & 4 below.

    Birthright citizenship extends to persons:

    “…born in the United States
    of parents who, at the time of his birth, are subjects of a foreign power
    whose parents have a permanent domicile and residence in the United States
    whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject”

    Links

    Wong: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZS.html

    WIKI: http://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States

  3. Jack says:

    “The American system of assimilating immigrants that has worked successfully for generations would be put under serious threat by creating a permanent two-tiered society with a permanent new underclass.”

    If Mr. Siskind is truly concerned with creating a two-tiered society, I wish he would reconsider his long-time support for “guest worker” programs, including the type which the Southern Poverty Law Center describes as “Close to Slavery” and opposes the expansion of.

    http://www.splcenter.org/get-informed/publications/close-to-slavery-guestworker-programs-in-the-united-states

    Maybe it’s unrealistic to expect attorneys who work to facilitate worker visas to maintain a critical eye toward the system they make a living from, but what exactly is the guest worker case for democracy, egalitarianism, and social justice? Among other things, guest worker programs are exploitative, foster inequality, discourage integration, lower wages and working conditions, and increase the number of undocumented workers in the U.S. By definition, they disfranchise people and thus are inherently undemocratic.

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