Issue Report: Birthright citizenship for children of illegal immigrants

Since the adoption of the Fourteenth Amendment to the US Constitution on July 9th, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states: “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.” This has been interpreted to give “birthright citizenship” to anyone born in the United States, except for the children of diplomats and Native Americans. The core issue and area of dispute surrounding the 14th amendment has been the widespread birth of children to illegal immigrants in the United States as well as the, albeit much more rare, “birth tourism” in which a foreign citizen travels for a short period to the United States in order to give birth to their child and make them an American citizen. All of this has led to widespread debate, and calls within Republican circles to either amend the 14th amendment or reinterpret it to end “birthright citizenship” so that no illegal immigrants or foreign visitors can give birth to a child and confer to them automatic citizenship. The main arguments and quotations from these resources are presented below.

Constitutionality: Does US Constitution provide for birthright citizenship?

Supreme Court ruled 14th amendment protects birthright citizenship

"EDITORIAL: Born in the USA: The flawed case against birthright citizenship." Chicago Tribune Editorial. August 15th, 2010:

“The Supreme Court has given the clause an inclusive reading. In an 1898 case involving the U.S-born son of Chinese parents who were not citizens, it ruled that since his parents were not diplomats, he was an American citizen. In 1982, the court considered the claim that illegal immigrants are not subject to U.S. jurisdiction and responded: ‘We reject this argument.'”

Birthright citizenship is long-standing common law doctrine

James C. Ho. "Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment." Immigration Policy Center:

“The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth. Although the doctrine was initially embraced in early American jurisprudence, the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizen ship to the descendents of slaves. Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law.”

"Jurisdiction clause" in 14th applies to children of undocumented

James C. Ho. "Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment." Immigration Policy Center

“when we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the U.S. […] aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law. Accordingly, the text of the Citizen ship Clause plainly guarantees birthright citizenship to the U.S.-born children of all persons subject to U.S. sovereign authority and laws. The clause thus covers the vast majority of lawful and unlawful aliens.”

14th amendment was written at a different time, but still applies

Native American kids have a state; undocumented ones don't

Writers of 14th amendment did not want birthright citizenship for illegals

"George F. Will: Citizenship a birthright?" Washington Post. March 28th, 2010

“If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration — and had anticipated huge waves of illegal immigration — is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.”

Birthright citizenship outdated; came from period of less migration

Eric Zorn. "Amendment dreamin' and the issue of birthright citizenship." Chicago Tribune. August 12th, 2010

“The guarantee of birthright citizenship (to all but the children of foreign diplomats) in the 14th Amendment came about in an era when our borders were wide open and international travel was considerably more difficult. When a family came here, it was a reasonable assumption that they intended to throw down roots and stay.”

Birthright citizenship lacks critical government consent

"George F. Will: Citizenship a birthright?" The Commercial Appeal. March 28th, 2010

“in 1884 the Supreme Court held that children born to Indian parents were not born “subject to” U.S. jurisdiction because, among other reasons, the person so born could not change his status by his “own will without the action or assent of the United States.” And “no one can become a citizen of a nation without its consent.” Graglia says this decision “seemed to establish” that U.S. citizenship is “a consensual relation, requiring the consent of the United States.” So: “This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person’s citizenship than to make the source of that person’s presence in the nation illegal.”

Native American kids not citizens, why should kids of illegals be?

Native American babies do not receive American citizenship when they are born. The same rule should apply to illegal aliens, as they are equally without a claim to US citizenship.

American tradition: Is birthright citizenship consistent with US traditions?

14th amendment has great legacy; don't change it to end birthright

Former Bush and McCain strategist Mark McKinnon said to Politico: “The 14th Amendment is a great legacy of the Republican Party. It is a shame and an embarrassment that the GOP now wants to amend it for starkly political reasons.

Birthright part of American tradition of inclusiveness and assimilation

"Go back where you didn't come from." Aug 12th 2010:

“Americans tend to boast too often about aspects of American society that aren’t really exceptional or admirable, but the American model of immigrant assimilation is truly something to boast of. Few countries in the world assimilate immigrants as well as we do. (Canada and Australia come to mind.) There’s no reason to tamper with a machine that works. We need to address the problem of undocumented aliens in this country by offering a pathway to legal residency, by reducing economic disparities with our southern neighbours, and by doing more to control our southern border. But denying citizenship to children born in the United States shouldn’t be part of that solution, especially not when there are so darn many of them.”

Birthright citizenship for illegals is bad loophole

Ira Mehlman of the Federation of American Immigration Reform, which backs Deal’s proposal: “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.”[2]

Such a loophole is contrary to the great importance of the US rule of law and to the sense of fairness Americans and other legal immigrants should feel surrounding US laws.

Birthright citizenship is offensive to legitimate immigrants.

When a person desperately wants to come to America, and must wait in line, or who was born in another country a week or a month before moving to America, it seems offensive that they are less deserving of citizenship than the child of someone who came illegally.

Citizenship is something that should be earned.

Citizenship is about much more than where you were born. It is about your willingness to contribute, engage in a society, perhaps learn the prominent language of that society, and more. The idea that citizenship can be acquired by the mere fact of being born in the United States seems to cheapen this social compact.

Incentives: Does birthright incentivize good or bad immigration behavior?

Undocumented come to US for opportunities, not for birthright citizenship

"Go back where you didn't come from." Aug 12th 2010

“Denying American citizenship to the American-born children of illegal immigrants may have a slight dissuasive effect on illegal immigration, but the effect will be small compared to the overwhelming incentive for illegal immigration, which is the far greater economic opportunities available in the United States compared to Mexico or Central America.”

Illegals have incentive to have babies w/o birthright citizenship

"Go back where you didn't come from." Aug 12th 2010

“Denying American citizenship to the American-born children of illegal immigrants may have a slight dissuasive effect […] on births to illegal immigrants already in the United States, but that effect, too, will be slight compared to the overwhelming incentive for having babies, which is pretty much hard-wired into our systems, for good or ill. I’d be surprised if revoking birthright citizenship led the number of babies born to illegal immigrants in the United States to fall from 8% to 7% of total births. That leaves you with a whole lot of American-born non-citizens.”

Ending birthright citizenship would not encourage illegals to leave

"EDITORIAL: Born in the USA: The flawed case against birthright citizenship." Chicago Tribune Editorial. August 15th, 2010

“Nor would depriving their American-born children of citizenship induce many of them to leave. All it would do is create a permanent class of dispossessed innocents living in the shadows.”

Birthright citizenship creates incentive for birthright tourism

Lindsay Graham: “They come here to drop a child. It’s called drop and leave. To have a child in America, they cross the border, they go to the emergency room, have a child, and that child is automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”[3]

Birthright citizenship incentivizes "anchor babies" for families

Howard Sutherland. "Citizen Hamdi: The Case Against Birthright Citizenship." Minnesotans for Sustainability. September 27, 2004:

“Birthright citizenship lures illegal aliens, who know a U.S.-born child is, thanks to American immigration law’s family-reunification bias, an anchor baby who will be able to sponsor his relatives for residence and citizenship. They also know that anchor babies’ mothers are not deported. In 1993, the Los Angeles County Board of Supervisors reported that two-thirds of births in L.A. County hospitals were to illegal aliens, mostly Mexicans. Conservative estimates of illegal-alien births here, assuming an illegal alien population of between 8.7 and 11 million, run from 287,000 to 363,000 per year.”

Morality to children: Is birthright citizenship moral to children of illegals?

Ending birthright citizenship would make millions of children nation-less

f a child is born in the United States and then goes back to another country, it may be one thing. But, the vast majority are born in the United States and remain, in effect relinquishing their relationship with – and any prospect for citizenship with – the nation of their parents. Their only national affiliation on earth is to the soil upon which they were born: the United States. Denying them this claim would make them into citizenshipless nomads.

Ending birthright citizenship creates an underclass in America

Timothy Lee. "Birthright Citizenship and Symbolism." Bottom-up Blog of Timothy Lee. August 10th, 2010:

“There’s nothing symbolic about birthright citizenship. Each year, thousands of Americans are born to undocumented immigrants. Birthright citizenship guarantees that when they grow up, they’ll enjoy the same freedoms that the children of American citizens do. Ending birthright citizenship means that, instead, they’ll be forced to live underground in the country they call home. This isn’t an ‘act of symbolic violence against hard-won American ideals of equality.’ It’s a sacrifice of the actual freedom and equality of actual human beings who will be born on American soil over the coming decade.”

Children of illegals should not be punished for parents' crime

Children should be made into good Americans, not made illegal

Illegal behavior of parents should not be rewarded.

While it is true that denying the child of an illegal immigrant birthright citizenship is harmful to the child, it is also true that giving them birthright citizenship rewards a mother for having willfully broken US law. Such a reward is unjust and unfair, and undermines the US rule of law. So, this is not about punishing children, it is about not rewarding illegal behavior.

Illegal immigrant parents are to blame for having children abroad.

Illegal immigrant parents, not the United States government, are to blame for bringing immigrating illegally and deciding to give birth to a child in the United States. The consequences to their children are a result of their folly, not of the government for deciding to end birthright citizenship.

Ending birthright citizenship withdraws something child never deserved.

While withdrawing birthright citizenship may harm children, it is important to understand that the children of illegals never had a legitimate claim to citizenship and, thus, to avoiding these harms.

The state is not responsible for foreign children.

The state is not responsible for the children of foreign citizens living abroad. Why should it be responsible for the children of illegal aliens (also foreign citizens) residing in the United States? The state has no moral obligation to these individuals, and particularly not to provide them with citizenship.

Amend/reinterpret?: Does 14th need amending or reinterpretation to end birthright?

Ending birthright requires amending 14th, not just reinterpreting it

"EDITORIAL: Born in the USA: The flawed case against birthright citizenship." Poten and Partners. August 15th, 2010:

“[Given the Supreme Court’s past inclusive rulings on birthright citizenship,] it’s not impossible that the court, in light of the unprecedented volume of illegal immigration, could change its mind. But it’s a long shot. Any effort to repeal birthright citizenship probably has to aim at amending the Constitution, not reinterpreting it.” This is a general knock against attempting to end birthright citizenship, because it would mean taking the dramatic and highly unlikely step of amending the constitution, which requires two-thirds majority support in Congress and three-forths support from states.

Birthright citizenship can be conditioned on "genuine connection" to US

Peter Schuck. "Birthright of a nation." New York Times. August 13, 2010:

“Fortunately, these strongly competing values [in the debate over birthright citizenship], combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society. This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country. Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools; such children could apply for citizenship at, say, age 10. The children would become citizens retroactively, regardless of their parents’ status. Other aspects of the larger immigration debate would continue, of course. But such a principled yet pragmatic solution to the birthright citizenship question could point the way toward common ground on immigration reform.”

14th amendment need not be amended, just reinterpreted

"George F. Will: Citizenship a birthright?" The Commercial Appeal. March 28th, 2010:

“To end the practice of “birthright citizenship,” all that is required is to correct the misinterpretation of that amendment’s first sentence: ‘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.’ From these words has flowed the practice of conferring citizenship on children born here to illegal immigrants. […] The Civil Rights Act of 1866 begins with language from which the 14th Amendment’s Citizenship Clause is derived: ‘All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.’ (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning — divided allegiance — applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. Indeed, today’s regulations issued by the departments of Homeland Security and Justice stipulate.”

Daniel Foster in the National Review that “What Kyl, Graham and others have tentatively embraced is an amendment that would clarify the first sentence of section 1 [of the 14th Amendment], [which states that ‘[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.] […] there is a credible argument that ‘subject to the jurisdiction thereof’ already excludes individuals who are here illegally, meaning that one might be able to end birthright citizenship for the children of illegal aliens by statutory as opposed to constitutional action.”[4]

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