"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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Known as the equal protection clause or the due process clause, the
14th amendment to the constitution guarantees citizenship to anyone born in the United States. The 14th amendment, passed in 1868, is one of a series of post civil war amendments that was designed to prevent the defeated confederate states from enacting legislation to subjugate their former black slaves. By ensuring that anyone born within the US would be a US citizen, congress aimed to prevent a permanent black underclass in the South that would not enjoy equal protection under the law.
Like many other clauses in our constitution, the basic principles have evolved over time to mean rather different things to our society. Due process and equal protection are often used today as the basis of law suits over discrimination. Birth-right citizenship, no longer a racial issue, has become an immigration issue. Immigrants who want to come to the US, either legally or illegally, often shortcut the bureaucratic procedures of the US and give birth to a child on US soil, thus "anchoring" their families in America. The 14th amendment guarantees their children citizenship and equal protection, or does it?
The United States is one of very few countries that has birth-right citizenship. Most other countries give citizenship at birth only to children of current citizens. Switzerland, for example, recently defeated a referendum aimed at bestowing citizenship to third generation residents. This means that people born in Switzerland whose grandparents immigrated there are not considered Swiss citizens! Other countries who had birthright citizenship such as Australia and New Zealand have recently done away with it opting instead for parental citizenship rights.
In explaining their decision, the
government of New Zealand writes: "The Government chose to amend the Citizenship Act of 1977 to recognize the value of New Zealand citizenship. The changes mean that a person cannot travel to New Zealand on a temporary permit solely to give birth and gain New Zealand citizenship for the child born in this country. By restricting citizenship by birth to the children of citizens and permanent residents, the Act's new provisions ensure that citizenship and its benefits are limited to people who have a genuine and ongoing link to New Zealand."
The citizenship clause of the 14th amendment never actually intended to bestow citizenship to foreign aliens. Sen. Jacob Howard, the clause's author, explained it to the Senate in 1868 as follows:
"[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Birth right citizenship, as we know it today, came into effect in 1898 when the Supreme Court expanded the scope of the 14th ammendment in
US v. Wong KimArk. In this case, a Chinese laborer born in the US of Chinese parents was denied entry into the US after a temporary visit to China. Wong KimArk claimed US citizenship under the 14th amendment, and the Supreme Court agreed. The Supreme Court chose to ignore its own precedent from
Elk v. Wilkins in 1884 which held that "The persons declared to be citizens are, 'All persons born or naturalized in the United States and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject..." Furthermore, the court expanded the definition of citizenship on the basis of British Common Law that predated the US.
Pro and Anti Immigration activists have been arguing the point ever since. This argument has reached somewhat of a crescendo recently as Congress considers sweeping changes to US Immigration laws. The problem is that despite the loud street protests and heated debate on both sides, much of the legislation is simply much ado about nothing. Based on the current law of the land, any "illegal" immigration into the United States is necessarily temporary in that it is limited to only the current generation.
The heated arguments about whether to legalize 12-15 million undocumented migrants (estimates vary) seemingly ignores the fact that any children born to these migrants are currently US citizens. Those wishing to remove or deport the illegal migrants also seem to ignore that, despite the logistical problems that would result, under current US law families of US Citizens -- their children -- are entitled to special protections.
The Congressional debate over immigration is a valid and constructive debate that Americans need to consider with care and wisdom. The current proposals, however, fail to actually solve the current problem. The House of Representatives' bill, which would turn most current illegals into felons, doesn't seem to consider what exactly we'd do with 12-15 million new felons (5% of the population) walking the streets, many of whom have American children. The Senate's bill, which would create some sort of legal status for migrants already here seems to ignore that the problem is getting worse daily as we do nothing to check the flow across the border.
If we truly want to do something to actually solve the immigration problem, we really need to define how much immigration we can (and wish to) absorb. Immigration without any limits would quickly stretch any citizenry's infrastructure and ability to cope. We could choose to check the flow of migrants across the border and prevent the problem from getting any worse. Once that is done, and only once that is done, then a serious discussion should occur about what to do with the people currently here, a problem that actually disappears entirely in one generation.
Alternatively, Congress could move to change birthright citizenship. This would take years, if enacted, to go through the courts. Ultimately, the Supreme Court would need to decide if the issue is decidable by statute or require a Constitutional amendment which would inevitably end the discussion. A guest worker program with no birth right citizenship could be another potential solution to the problem.
Either way, piecemeal legislation that panders to one political group or another would do very little to ease the problem as the amnesty bill of 1986 has shown. When Reagan proposed amnesty to 2.8 million illegal aliens at the time, he promised that it would be a "one time deal." There have been 6 more "one time deals" since then and the current legislation would be, by far, the biggest yet. If we wish to prevent having to pass a new amnesty every few years, steps must be taken to ensure a solution to the problem. Perhaps, as Thomas Friedman of the NY Times writes,
"build a big fence with a big gate," or perhaps end birthright citizenship. Citizens of the United States should demand no less from their representative government.