This post is part of Cram Session, an ongoing weekly series from the Whitehead Journal of International Relations and Diplomacy. Each week a member of the Whitehead Journal will discuss the history and future of a wide variety of topics pertaining to International Relations
Should children born to illegal immigrants in the United States automatically receive U.S. citizenship? This is the question fueling the latest debate in the U.S. immigration saga. According to a recent Pew Hispanic Center study, approximately 8% of all U.S. births are to illegal immigrant parents. The 14th Amendment of the U.S. Constitution suggests that these babies are automatically U.S. citizens. Now this Amendment is in the crosshairs of many House Republicans. This past January, several lawmakers joined in promoting a new system of granting citizenship to those children born to illegal immigrant parents.
Background: Citizenship in the United States
Section I of the 14th Amendment addresses citizenship in the United States. It holds in part that “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.” Professor Randall Kennedy of Harvard Law explained recently on NPR that the Amendment was created in response to the Supreme Court’s Dred Scott v. Sanford (1857) decision, which stated that those of African descent were not eligible for citizenship. The original constitution had no provision for citizenship and the question arose before the Supreme Court whether free African Americans could be considered citizens. Congress responded to this first in 1866 passing a statute providing citizenship by birth, and then in 1868 through the passing of the 14th Amendment.
The meaning of the 14th Amendment was questioned later in the 1890s regarding Chinese immigrant citizenship. In the 1898 United States v. Wong Kim Ark case, the Supreme Court ruled that the citizenship provision of the 14th Amendment applied to a baby born to Chinese immigrant parents. Although the parents were not in the country illegally, this decision has stood as the determinative voice of birthright citizenship. There has been little concern for the language of the 14th Amendment until this past election year.
America is actually an exception to the rule concerning the granting of citizenship. Most other Western countries do not grant citizenship based on birthright. However, as shown above, our country has a long tradition of doing so. Could restrictions on birthright citizenship become a reality?
Lawmakers supporting the idea of restricting citizenship to those children who have at least one parent holding U.S. citizenship have proposed two separate methods of addressing the issue. Most agree that amending the Constitution is a daunting and extremely complex process and therefore not the most amenable route to changing citizenship laws now. Instead they have proposed action through the state legislatures. The first model creates a new definition of state citizenship as well as national citizenship. Babies born to two illegal immigrant parents would be excluded from citizenship entirely. The second model is a pact between the states creating separate and distinct birth certificates for those children whose parents cannot prove legal immigration status.
Legislators proposing the issue argue that illegal immigration has a “dire effect on state budgets” and impacts our economic recovery negatively. Many claim that the current interpretation of the 14th Amendment creates an invitation for illegal immigrants to have their children in the United States in order to “anchor” themselves in the country, and that if this provision were repealed, illegal immigration may decrease. Children born to illegal immigrants are often referred to as “anchor babies.” This may be misleading however, because these children cannot save their parents from deportation until they reach 21 years of age. Only then can they file to sponsor their parents for legal immigration status. Some proponents of the restriction further claim that the 14th Amendment has not been interpreted correctly as a constitutional matter. They argue that being born or naturalized in the United States does not equal being subject to the jurisdiction thereof. This argument suggests that being under the jurisdiction of the United States requires more than simply being born within its borders.
Those opposing the measures argue that citizenship is clearly a federal matter, and that any action taken by the states regarding the issue will be deemed unconstitutional. Some rights groups are calling this an attempt to create a new form of oppression in the United States. The president of the Leadership Conference on Human and Civil Rights, speaking to the New York Times, referred to the proposals as creating “two tiers of citizens, a modern-day caste system.”
The debate continues to rage in many states across the U.S. as more legislators join the movement. At this moment, however, the proposals do not seem to have the necessary momentum to pass into law. It also appears highly questionable that such state action will be constitutional. It is likely that many politicians will find strong opposition to this issue, if it does in fact gain more ground, considering the sizable and continually growing population of Latino immigrants in the United States. It may be more beneficial for those advocating this position as a means to improve our economy to focus their efforts more on economic policies and away from immigration.
Photo: Flickr, Casey Renner