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A birthright that shouldn't be

It would be best to get rid of the anachronism of birthright citizenship, but that may be impossible. So how about enforcing the immigration laws we've got?

September 20, 2010|By Charlotte Allen

Support is mounting for efforts in Congress to stop granting birthright — that is, automatic — citizenship to the U.S.-born children of illegal immigrants. Such a measure would bring America's citizenship policies into line with those of most of the rest of the world, where even the children of legal noncitizens do not automatically become citizens of the country where they are born.

It's not hard to see why many Americans would like to change the law. The Pew Hispanic Center issued a report in August indicating that one out of every 13 babies born in the United States in 2008 — about 340,000 out of a total of 4.3 million — had at least one parent who was an illegal immigrant. About 85% of those parents were Latinos.

The center also found a recent huge increase in the number of children under age 18 living in the United States whose parents were illegal immigrants: 4 million in 2008, compared with 2.7 million in 2003. On Sept. 3, The Times reported online that Los Angeles County paid out a record $52 million in July in welfare checks and food stamps to illegal immigrants for their U.S.-born children, according to figures released by county Supervisor Michael D. Antonovich. The amount represented 23% of all county welfare and food stamp assistance.

There is just one problem with getting rid of birthright citizenship: the 14th Amendment to the U.S. Constitution. It declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

You can argue — and some distinguished legal scholars have done so — that the purpose of the 14th Amendment, ratified in 1868 in the aftermath of the Civil War, was solely to ensure that newly freed black slaves possessed all the rights of other Americans. Congress inserted the citizenship clause, as it is called, into the amendment to overrule the infamous Dred Scott decision of 1857, in which the Supreme Court held that even free blacks were not U.S. citizens.

Nonetheless, in 1898 the Supreme Court ruled that Wong Kim Ark, a U.S.-born child of Chinese immigrants, was a birthright citizen under the 14th Amendment. The Wong boy's parents were legally in America, however, and some scholars have argued that the phrase "subject to the jurisdiction" of the United States may not apply to people who have committed fraud or otherwise flouted U.S. laws in order to live here. That is the thinking behind a pending GOP-backed House bill that would, in most cases, limit U.S. citizenship to the offspring of U.S. citizens and others who are here legally.

If passed and signed into law, that bill almost certainly would be challenged in court, possibly successfully. That is probably why several prominent Senate Republicans, including Minority Leader Mitch McConnell, have talked about holding hearings on the 14th Amendment with a possible eye toward revising the citizenship clause itself. But amending the Constitution is a notoriously difficult process.

This is unfortunate, because the United States is one of only 30 countries that grants automatic citizenship to practically anyone who happens to be born here. No European country confers automatic birthright citizenship (the three that once did — Britain, Malta and Ireland — ended the practice in recent decades). The overwhelming majority of nations follow the concept of jus sanguinis (Latin for "right of blood") in which the citizenship of the parents governs the citizenship of their children.

The converse, jus soli, ("right of the soil") is mostly a New World phenomenon, dating from a time when underpopulated Western Hemisphere countries were desperate for new residents. Birthright citizenship also made sense back when any sort of travel to America, including immigration, was arduous, there was typically no going back, and assimilation to American mores and American patriotism (including learning English) was the enforced cultural norm. Nowadays we live in a different world, one in which a multicultural ideology discourages assimilation and travel has made it easy to cross borders

It would be nice to get rid of the anachronism of birthright citizenship, but that may be legally or practically impossible. So here's an alternative idea: How about enforcing the immigration laws we've got?

An estimated 400,000 people enter the United States illegally each year (the number was twice as high before the recession), and most of them manage to stay here unimpeded. During the Reagan years, in 1986, Congress decided to solve the problem by granting amnesty to the 3 million illegal immigrants then living here and then making it a crime for employers to hire illegal immigrants.

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