In the wake of the popular yet massively controversial passage of Arizona SB 1070, the bill’s sponsor, Senator Russell Pearce, is considering introducing a new bill that would deny Arizona birth certificates to children born in the U.S. to illegal immigrant parents.
According to the 14th Amendment, “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 “birthright citizenship” of course means that illegal immigrants who bear children in this country now have American children and deporting the parents becomes more problematic–thus the term “anchor babies.”
George Will made a fairly compelling argument this spring that the birthright citizenship we know today is not at all what the framers of the 14th Amendment intended:
The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.
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.
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.
Will gets this argument from University of Texas Law School Professor Lino Graglia‘s law review article in the Texas Review of Law and Politics. Graglia is a lightening rod known for his controversial statements on race, such as the 1997 speech in which he asserted that “blacks and Mexican-Americans can’t compete academically with whites.”
George Will is highly respected in conservative and libertarian circles, especially for his principled writings on issues like government overreach in licensing and school choice.
Lino Graglia is not so highly regarded, at least by us libertarians. As one attorney well known for both his legal acumen and expert knowledge of constitutional principles and history explained:
University of Texas professor Lino Graglia, whose disdain for those who disagree with him is matched only by his disdain for the entire concept of judicial review. It is difficult to tell whether professor Graglia actually believes the Constitution confers upon the executive and legislative branches virtually unfettered power over individuals or whether he simply thinks it would be better for judges to pretend as if it does, allowing Leviathan to continue gorging itself on the liberty of citizens and an ever-increasing proportion of wealth they have not even earned yet.
Given that Will’s argument on birthright citizenship appears wholly premised on Graglia’s law review article and beliefs, I am finding it less compelling.
For the moment, the language of the 14th Amendment is pretty clear.
Last fall, the LAProgressive site provided a post on the myths and realities of birthright citizenship, calling into question some of the conclusions Will and Graglia reach:
Myth: Denying birthright citizenship to the children of immigrants would decrease illegal immigration.
Fact: Wrong again. Denying birthright citizenship to children of immigrants would actually increase the number of illegal immigrants in the U.S. because babies would be born without status. The myth that immigrants come to the U.S. illegally to give birth to “anchor babies” and obtain legal status is simply not true. Children born in the U.S. have to wait until they’re at least 21 to petition for their parents. Even then there are many legal obstacles to getting a green card for their parents. In reality, ending birthright citizenship would mean that thousands of children would be born every year in the United States with no citizenship in any country.
* * *
In sum, eliminating birthright citizenship would be unconstitutional, impractical, expensive, and complicated. Furthermore it would constitute an assault on the letter and the spirit of the U.S. Constitution as well as on the civil rights of all Americans. Margaret Stock concludes:
The policy arguments in favor of retaining birthright citizenship are very strong. The policy arguments against it are weak. Even if we believe that it is possible to interpret the Fourteenth Amendment differently than we have been interpreting it for more than a hundred years, it is not clear why we would want to do so. Trading an easy and egalitarian birthright-citizenship rule for one that would cause hardship to millions of Americans is not a smart way to approach our complex immigration problems.
Federal efforts to repeal birthright citizenship have been unsuccessful (see here, here, here, and here for recent proposals in Congress. If Pearce–or one of the congressional proposals made every couple years–is successful, that might remove one incentive for illegal immigration (although, clearly there are reasonable and strong arguments against that position).
But is this the right move, constitutionally and policy-wise?
(This post has been updated to add some thoughts I meant to include initially)
UPDATE 2: Garrett Epps, a professor at the University of Baltimore Law School, has an interesting paper out considering the legislative history of the citizenship clause. (H/T Josh Blackman) From the abstract:
Conservative legal scholars have begun to advance scholarly arguments suggesting that the “subject to the jurisdiction thereof” language was “intended” by the Framers of the Amendment to require legal status and “full allegiance” to the United States to activate the citizenship guarantee. A review of the legislative debates during the framing of the Amendment reveals little evidence to support this contention. It indicates that the language was designed to exclude two and only two groups: (1) children of diplomats accredited to the United States and (2) members of Indian tribes who maintained quasi-sovereign status under federal Indian law as it existed in 1868. The contrary contention arises out of a partial and strained reading of the debates and an at best partial understanding of the intellectual background of the Amendment. That proponents of a narrower view propound their interpretation as embodying the “clear intent” of the Framers seems to contrary to the record as to raise questions about the very meaningfulness of “originalist” arguments in general.