Protecting Constitutional Citizenship: 14th Amendment under Fire

Updated March 22, 2011

Our Position

We can no longer afford the failed enforcement-only approach to immigration. Our current laws break up families, and we end up spending millions on a system that clearly isn’t working. But the solution is not the gutting of the Constitution. Anti-immigrant activists would have us believe that doing away with constitutional citizenship in the 14th Amendment will stem the tide of illegal immigration. In reality, this radical redefinition of citizenship would do nothing to solve the problems we’re facing and would instead force countless children into the shadows due to someone else’s choice that was out of their hands. We must do what we can to defend this fundamental right guaranteed in the Constitution – that of citizenship for any person born within the US.

Talking Points

The 14th Amendment was never intended to discriminate against the children of undocumented immigrants. Anti-immigrant activists falsely argue that applying the 14th Amendment to the children of undocumented immigrants is a misinterpretation. However, the words of the Citizenship Clause – “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” – are unambiguous in their guarantee of citizenship to any person born on US soil, regardless of their parents’ legal status. Senator Jacob Howard (R-MI), one of its drafters, clearly stated that the only people not subject to US jurisdiction are foreigners with special immunities, such as diplomats; thus, the Citizenship Clause applies to every other person born here. During congressional debate, Senator John Conness (D-CA) voiced his support for the amendment, noting that it would also grant citizenship to Chinese immigrants’ children. As early as 1898, in United States v. Wong Kim Ark, the Supreme Court flatly declared that the 14th Amendment affirmed the right of citizenship by birthplace.

The “anchor baby” myth is just that: a myth. Within the anti-immigrant lexicon is the myth of the “anchor baby”: a child born to undocumented immigrants who crossed the border solely so that they could bear children and “anchor” themselves in the US. Not only does this not make any practical sense, but it is plainly false. A citizen cannot sponsor an immigrant for permanent residency until the age of 21, and even then a child’s sponsorship is no guarantee that a parent will gain legal status. It’s certainly not immediate; they would have to return to their home country for 10 years before applying, meaning the process could take 31 years. Moreover, immigrants just are not coming to our country to have babies. A February 2011 Pew Hispanic Center/Pew Research Center study found that 91 percent of undocumented immigrants who became the parents of American citizens between March 2009 and March 2010 had been residing in the US at least two to three years prior – 61 percent for five to six years.

We are not the only country that grants automatic citizenship. Conservative commentator Glenn Beck has falsely claimed that we are the only country that guarantees citizenship at birth. In addition to the United States, 33 countries offer automatic, unconditional citizenship to children born within their borders, including almost every other country in the Americas.

Defending constitutional citizenship is not a partisan issue. Several notable conservative figures have spoken out against the repeal of constitutional citizenship, including Linda Chavez, columnist and chairwoman of the Center for Equal Opportunity, and Lou Dobbs, cable news commentator and anti-immigrant activist. Potential presidential contender and former Arkansas Governor Mike Huckabee has stated that “you don’t punish a child for the crimes a parent commits.” In Congress, Senator Marco Rubio (R-FL), Representative Scott Tipton (R-CO3), and former Representative Charles Djou (R-HI1) have all publicly supported constitutional citizenship.

Changing the definition of citizenship just isn’t practical. Repealing the Citizenship Clause would create a massive increase in the number of undocumented immigrants in this country and send many children into the shadows, endangering their well-being and posing serious risks for public health and public safety. The government would also have to create a costly new bureaucracy to track and verify parental citizenship. Rather than exacerbating the crises caused by the current system, let’s look at real solutions that don’t undermine the Constitution.

Legislation

Anti-immigrant activists are pushing for legislation to deny the right of citizenship to US-born children of undocumented immigrants. At the federal level, we have the Birthright Citizenship Act (H.R. 140) and a constitutional amendment (S.J.Res. 2), both of which would redefine US citizenship to apply only to children with at least one parent who is a US citizen. States including Arizona, Georgia, Montana, and Mississippi would like to follow suit.

Action

Contact your Representative and Senators and tell them that constitutional citizenship concerns an individual’s birthplace, not someone else’s legal status. Let them know that changing the 14th Amendment now would be disastrous and morally reprehensible. Urge them to oppose legislation including the Birthright Citizenship Act (H.R. 140), the constitutional amendment (S.J.Res. 2), and similar state attacks. Write a letter to the editor of your local newspaper explaining that this brutal attack on the Constitution by anti-immigrant activists is irresponsible and unfounded.

Further Reading

American Constitution Society
American Civil Liberties Union
Asian American Justice Center
Leadership Conference on Civil and Human Rights
Mexican American Legal Defense and Educational Fund
Opportunity Agenda

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