Legislators from five states have unveiled model legislation with complicated provisions but a simple and pernicious premise: that children born in this country aren't citizens if their parents are illegal immigrants.
That assertion, however, is no match for more than 100 years of Supreme Court precedent holding that anyone born in the United States is an American citizen. If the states enact laws disregarding that principle, the court should resoundingly reaffirm its interpretation of the 14th Amendment.
The amendment, ratified after the Civil War, says: "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."
The natural reading of that language is that it covers any person born in the United States, who by definition is subject to American law. But the legislators opposed to so-called birthright citizenship offer a different interpretation of "subject to the jurisdiction thereof." They argue that a child is not subject to the jurisdiction of the United States unless he or she has "at least one parent who owes no allegiance to any foreign sovereignty, or [is] a child without citizenship or nationality in any foreign country."
The legislators lack the authority to change the definition of citizenship, something they hope Congress will do. But they hope to lay the groundwork for a two-tiered system with two proposals based on the idea that birthright citizenship is invalid.
One would confer what's known as "state citizenship" on people with at least one parent who is a citizen or permanent legal resident, while denying it to children with two parents who are illegal immigrants. The other would create a compact in which participating states would issue two kinds of birth certificates, one for children who meet those criteria and another for children "not born subject to the jurisdiction of the United States," in effect creating a caste system.
The legislators' definition of citizenship is impossible to reconcile with Supreme Court precedent. In 1898, the court, interpreting the 14th Amendment in light of common law, ruled that the American-born child of noncitizen Chinese immigrants was entitled to citizenship. It rested its decision on the "fundamental rule of citizenship by birth within the territory." The only exceptions, the court said, were "children of foreign sovereigns or their ministers, or [those] born on foreign public ships, or [children] of enemies within and during a hostile occupation of part of our territory, and … children of members of the Indian tribes owing direct allegiance to their several tribes."
In the event that the legislators' initiatives are enacted, that precedent surely would lead the Supreme Court to strike them down. Still, these proposals muddy the legal waters in service of a mean-spirited campaign against the children of illegal immigrants. Whether it's hysteria about "anchor babies" or opposition to the DREAM Act, which would provide a pathway to citizenship for children brought to this country at a young age, anti-immigrant fervor is unworthy of this society. So is this ill-considered assault on a long-established legal principle.