Birth Rights

How the Fourteenth Amendment Became Controversial

Section one of the Fourteenth Amendment, ratified in the aftermath of the Civil War, states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The amendment’s provision of so-called birthright citizenship was specifically designed to undo the infamous decision in Dred Scott v. Sandford, in which the Supreme Court held that freed slaves and their descendants could never become “citizens.” By embracing the common law’s inclusive model of birthright citizenship, Congress declared that there would no longer be a racially defined caste of permanent noncitizens. The Fourteenth Amendment is one of the high points in our constitutional history. Regrettably, it is one that a growing number of politicians would like to undo.

Since the Fourteenth Amendment was ratified in 1868, the notion of birthright citizenship has come under periodic attack. At the turn of the twentieth century, nativists who were worried about a “yellow menace” tried to withhold birthright citizenship from the U.S.-born children of Chinese immigrants. (The immigrants themselves weren’t eligible to become naturalized citizens because of the racist Chinese Exclusion Act.) More recently, during the recession of the early 1990s, while California’s Governor Pete Wilson was working to deny public services to illegal immigrants, conservatives were calling for the abolition of birthright citizenship for the children of those immigrants.

Now as the nation struggles to recover from the Great Recession, the Right has returned to the issue. Some promise to get rid of birthright citizenship with a simple statute, but a statute would not be enough. According to the most natural reading of the Fourteenth Amendment, anyone born on U.S. soil must be recognized as a citizen. As the Supreme Court made clear in the 1898 case United States v. Wong Kim Ark, the amendment’s reference to those “subject to the jurisdiction” of the United States is meant to exclude only those present within the United States but not subject to the force of its laws—specifically, “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state.” Of course, illegal immigrants, unlike diplomats, are subject to the jurisdiction of the United States: if they break a law, the fact that they are undocumented does not shield them from punishment. The only way to change all of this would be to amend the Fourteenth Amendment, and a growing number of conservatives, including several Republican senators and members of Congress, seem prepared to do just that.

Birthright citizenship is especially fitting for a nation of immigrants, and it should come as no surprise that it is the rule throughout the Western Hemisphere, including Mexico and Canada. It does a reasonably good job of assuring that people are recognized as citizens in the country to which they have the closest cultural and psychological connections. It also speeds the process of assimilation by binding the children of immigrants to the United States as full members of our political community. The experience of German-born Turks and Japanese-born Koreans should serve as a cautionary tale. In both countries, citizenship has historically been difficult to obtain, not only for immigrants but also for their descendents. The consequence for such native noncitizens has been a form of statelessness. The children and grandchildren of immigrants may feel culturally German or Japanese, but they are not recognized as such. As a result, they have become, as the Economist has put it, “a permanent underclass displaying tenuous allegiance to the country they live in.” And yet these young people have nowhere else to go, since their connections to the homeland of their parents (or grandparents or even great-grandparents) are even more tenuous. Recognizing these problems, Germany has in recent years begun to liberalize the process by which German-born Turks may become citizens.

Among its other advantages, birthright citizenship prevents the emergence of a class of people who are culturally American but lack both the security of citizenship and access to the political process. Without citizenship, the children of immigrants, like immigrants themselves, would remain subject to deportation. Under current federal law, even legal permanent residents can be deported if they are convicted of any one of a large number of crimes, including minor nonviolent crimes. In one case, for example, a Nigerian woman with two children born in the United States was ordered to be deported after pleading guilty to shoplifting a $15 baby outfit. Deportation for relatively minor criminal wrongdoing is especially draconian for people born and raised in the United States. For them, it is in effect a form of exile.

Like any legal device, birthright citizenship is not without its costs. Chief among these is the inevitability that some of the people born in the United States will have little loyalty to this country. Because of the Fourteenth Amendment, a child born in New York City while his Italian parents visit on a two-week vacation is no less a citizen than a descendant of George Washington. Although such cases are rare, conservatives have seized on them, warning that illegal immigrants and visitors to the United States are “gaming the system.” Employing a term usually reserved for the birth of livestock, Republicans such as South Carolina Senator Lindsey Graham have claimed that illegal immigrants come to the United States precisely in order to “drop” an “anchor baby,” whose own citizenship helps them remain in the country permanently. One Republican congressman has even tried to link birthright citizenship to terrorism, peddling the fantastic story that terrorist groups are sending pregnant operatives to the United States so that their children will be U.S. citizens—the better for them to serve as sleeper agents later on. But, contrary to the GOP talking points, there is simply no evidence that large numbers of people are coming to the United States in order to take advantage of the benefits of birthright citizenship.

Conservatives are now citing an August 2010 Pew study that found 8 percent of those born in the United States in 2008 were born to illegal immigrants, who are only 4 percent of the U.S. population. (Not mentioned is an even more recent Pew study, which found illegal immigration to the United States has dropped by roughly two-thirds since 2000.) As the Pew report notes, regardless of their legal status, immigrants have higher fertility rates than the general population. The Pew researchers point out that they lack adequate data to compare fertility rates between legal and illegal immigrants, but there is no reason to suppose that illegal immigrants are having more children than legal immigrants of the same age and background (the average age of illegal immigrants tends to be roughly a decade younger than that of legal immigrants). Importantly, the Pew data also show that 80 percent of illegal immigrants who give birth to a child while in the United States have been in the country for over a year before the child is born, a fact at odds with Senator Graham’s suggestion that such mothers come to the United States just to give birth.

In short, the Pew study offers no evidence that a significant number of people are traveling to the United States solely (or even primarily) to take advantage of birthright citizenship. What the Pew study does confirm is that the country is undergoing a dramatic demographic shift. The children of legal immigrants, especially Latinos, account for a disproportionate number of children born in the United States. Indeed, nonwhite children account for the majority of newborns. If current trends continue, non-Latino whites will be a minority in the United States by the middle of this century. Such demographic changes always breed anxiety; and it is likely that this anxiety, rather than the reality of illegal immigration itself, has rekindled the campaign against birthright citizenship.

The Pew study also highlights the potential social costs of ending birthright citizenship for the children of illegal immigrants. The study tells us that one out of twenty people living in the Unites States is here illegally. Unsurprisingly, the fact that millions are here illegally, with no way to normalize their status, has not prevented them from having children. And the bonds these children are forming with the land of their birth may be as strong as those of the children of legal immigrants. Another new study, this one by the Migration Policy Institute, finds that by ensuring that the children of illegal immigrants are themselves illegal, the elimination of birthright citizenship would steadily raise the number of people who live in the United States illegally—well above the number of those who enter the country illegally. The result would be a massive population of disenfranchised native-born Americans.

Illegal immigrants didn’t come here to take advantage of birthright citizenship, and ending it won’t get them to leave. The debate over birthright citizenship has been ginned up by cynical politicians who hope to motivate voters by appealing to their fears. No doubt all the talk about a constitutional amendment will disappear after the midterm elections. In the meantime, however, the GOP’s electoral strategy of exploiting anxiety about demographic change is likely to continue driving Latinos and other people of color away from the party. The politics of fear may be a winner in 2010, but the same changes Republicans are now using to scare white voters guarantee that their base will be shrinking in the years to come.


Related: Reasonable Reform, by the Editors

'People Come Here to Have Babies,' by E. J. Dionne Jr.

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The "anchor baby" theory is a lot to do about nothing.  The biggest problem with regularizing the status of millions of illegals here now is that unless changes are made to the preference system of our immigration law, the immediate family members of the illegals (parents, siblings and children) will have a preferred status for immigrating to the US.  In short, if we just legalize 11 million illegals, we will be simultaneously giving immigration preferences to a minimum of 4 or 5 times that number.  It is grossly unfair to those who are trying to immigrate here following the rules.  Not only have the illegals jumped the line, but their relatives could be put in front of those following the rules.  I believe that the proposed amnesty that failed in Congress a few years ago attempted to deal with this problem by stripping the illegals who got amnesty from having preferential coattails for their families.    

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.