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Attack on 14th Amendment: It's wrong

The far-right's effort to change the 14th Amendment to exclude from 'birthright citizenship' the U.S.-born children of illegal immigrants would only weaken our nation.

August 16, 2010|Gregory Rodriguez

Just when you thought the Republican far-right had enough enemies to keep itself busy — gays, socialists, Muslims, Arabs, illegal immigrants — it launched a new war against babies "dropped" (in the loving words of South Carolina Sen. Lindsey Graham) by illegal immigrant mothers. These politicians want to change the 14th Amendment so that those U.S.-born children would be excluded from "birthright citizenship."

Their main contention is that the framers of the 14th Amendment did not have the children of illegal immigrants in mind when they explicitly stated 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." And I suppose that has to be true given that there was essentially no restriction on migration to the U.S. back then and, therefore, there was no such thing as an illegal immigrant.

But their argument misses the forest for the trees. Though blacks were the immediate beneficiaries of the 14th Amendment, the principle it promoted was clearly broader. In essence, its framers were seeking to put an end to the social divisions that the Supreme Court's Dred Scott decision of 1857 had judicially recognized.

The Scott decision, as you might remember from high school civics, held that blacks were excluded from membership in the national community because they had been "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority." As UCLA legal scholar Kenneth L. Karst has written, the birthright citizenship provision in the 14th Amendment "constitutionalized" the end of America's caste system.

So it stands to reason that to deny birthright citizenship to the U.S.-born children of illegal immigrants would serve to reestablish that system: a hierarchical structure in which classes are determined by heredity. Because your father was classified as inferior, you will be too.

At first glance — and also on the second — this is a notion that we'd otherwise consider anathema in American society. Imagine, for instance, if criminal convictions or bankruptcies passed from one generation to the next.

Scholars have been telling us for years that the belief in liberty and equality is just as much rooted in culture as in law. After a point, it becomes a chicken-and-egg situation. To create a native-born caste of permanent foreigners — noncitizens who could do nothing to improve their status — would infect the interpretation of equality under the law and would betray and undermine our cultural commitment to equal rights.

Of course, members of a nation, a political community, have the right to determine the rules as to who among outsiders can or cannot become a member. But it's more than a little problematic to categorize a class of native-born children, who have generally never known any other home, as permanent, essentially stateless outsiders. As political philosopher Michael Walzer has written, "The denial of membership is always the first of a long train of abuses."

Citizenship defined by where one is born, by territory, is not without its imperfections, but it best upholds not only our belief in equality but the need for a cohesive community. In ancient Greece and Rome, only children of citizens received citizenship because that was the most efficient way to maintain social distinctions in a society in which slavery and other forms of status subordination were accepted. (The U.S. confers citizenship on the children of citizens too in some situations, but territory remains important: In some instances, at least one parent has to have lived in the U.S. within a prescribed number of years.)

By contrast, birthright citizenship was established early on under English common law, a legacy of the medieval system of feudalism and reciprocal obligation. A child was deemed worthy of protection of the sovereign in whose territory he was born. In exchange, the child owed the sovereign loyalty. That reminds us that citizenship is not just about rights. It's also about responsibilities.

In the long term, it's in this country's best interest to absorb the children of those who have made their way here, and thereby to establish the reciprocal obligations of citizenship. We all know the adage that owners take better care of their residences than renters. The same applies to full citizens and their nation. The more residents of a national community who feel obligated reciprocally, the stronger the community.

American history has proved that the broader our sense of civic inclusion, the stronger our nation. The Republican Party's search for enemies will only make us weaker.

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