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June 16, 2010 in Nation/World
Citizenship proposal faces constitutional test
Arizona lawmaker targets U.S.-born children of illegal immigrants
PHOENIX – Emboldened by passage of the nation’s toughest law against illegal immigration, the Arizona politician who sponsored the measure now wants to deny U.S. citizenship to children born in this country to undocumented parents.
Legal scholars laugh out loud at Republican state Sen. Russell Pearce’s proposal and warn that it would be blatantly unconstitutional, since the 14th Amendment guarantees citizenship to anyone born in the U.S.
But Pearce brushes aside such concerns. And given the charged political atmosphere in Arizona and public anger over what many regard as a failure by the federal government to secure the border, some politicians think the idea has a chance of passage.
“I think the time is right,” said state Rep. John Kavanagh, a Republican from suburban Phoenix who is chairman of the powerful House Appropriations Committee. “Federal inaction is unacceptable, so the states have to start the process.”
Earlier this year, the Legislature set off a storm of protests around the country when it passed a law that directs police to check the immigration status of anyone they suspect is in the country illegally. The law also makes it a state crime to be an illegal immigrant. The measure, which takes effect July 29 unless blocked in court, has inflamed the national debate over immigration and led to boycotts against the state.
An estimated 10.8million illegal immigrants were living in the U.S. as of January 2009, according to the Homeland Security Department. The Pew Hispanic Center estimates that as of 2008, there were 3.8million illegal immigrants in this country whose children are U.S. citizens.
Pearce, who has yet to draft the legislation, proposes that the state of Arizona no longer issue birth certificates unless at least one parent can prove legal status. He contends that the practice of granting citizenship to anyone born in the U.S. encourages illegal immigrants to come to this country to give birth and secure full rights for their children.
“We create the greatest inducement for breaking our laws,” he said.
The 14th Amendment, adopted in 1868 in the aftermath of the Civil War, reads: “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.” But Pearce argues that the amendment was meant to protect black people.
“It’s been hijacked and abused,” he said. “There is no provision in the 14th Amendment for the declaration of citizenship to children born here to illegal aliens.”
John McGinnis, a conservative law professor at Northwestern University, said Pearce’s interpretation is “just completely wrong.” The “plain meaning” of the amendment is clear, he said.
Senate candidate Rand Paul, a Kentucky Republican and darling of the tea party movement, made headlines last month after he told a Russian TV station that he favors denying citizenship to the children of illegal immigrants.
A similar bill was introduced at the federal level in 2009 by former Rep. Nathan Deal, a Georgia Republican, but it has gone nowhere.
The Federation for American Immigration Reform, based in Washington, said Pearce’s idea would stop immigrants from traveling to the U.S. to give birth.
“Essentially we are talking about people who have absolutely no connection whatever with this country,” spokesman Ira Mehlman said. “The whole idea of citizenship means that you have some connection other than mere happenstance that you were born on U.S. soil.”
Citizenship as a birthright is rare elsewhere in the world. Many countries require at least one parent to be a citizen or legal resident.
Adopting such a practice in the U.S. would be not only unconstitutional but also impractical and expensive, said Michele Waslin, a policy analyst with the pro-immigrant Immigration Policy Center in Washington.
“Every single parent who has a child would have to go through this bureaucratic process of proving their own citizenship and therefore proving their child’s citizenship,” she said.
Ancient Roman wrecks found in deep water 
oneanddone on June 16 at 4:21 a.m.
It all comes down to interpretation. Certainly the 14th amendment wasn’t written with uncontrolled, illegal immigration in mind. And one can legitimately make the case that even an illegal alien doesn’t consider themselves “subject to the jurisdiction” of the United States, which is an included clause. I’m not sure that the Supreme Court would rule against Arizona, but I am certain that the majority of legal US citizens would deny permanent status simply based on birth location.
SpokaneLiberal on June 16 at 6:51 a.m.
People might be willing but it is clearly unconstitutional. The parents not being “subject to the jurisdiction” (is an incorrect interpretation) but also irrelevant. The child is not its parents. We are a jus soli nation by Constitution. If you are born on US soil you are a US citizen. This would take more than a law, it would take a Constitutional Amendment.
I think you are also wrong that this stands a chance in front of the Supreme Court. In fact I think that it is likely it would go 7-2 against it (or maybe 9-0), with a rare alignment of Ginsburg and Kennedy voting to support it. No strict constructionist could could possibly read the 14th amendment as permitting children born on US soil as anything other than US citizens.
remymartin on June 16 at 8:07 a.m.
When we look at the 14th amendment, we need to go back to that period of time and find the reason why they wrote it. It came about after the Civil War during the Reconstruction period for protection of blacks, not for the blatant disregard of our United States border with Mexico! It is very clear it was not intended for a child born of Illegal aliens, deliberately living here illegally, to automatically be a United States citizen! The 14th amendment is being abused and exploited and you would think that reasonable thinking people could see that, but when it comes to Supreme Court judges, I don’t know.
SpokaneLiberal on June 16 at 9:10 a.m.
The original intent of the 14th Amendment was to keep people from trying to pass state laws to exclude people born on US soil from US Citizenship and to extend equal protection and due process under the law to all people in all states.
It is actually settled law (United States v. Wong Kim Ark and Plyler v. Doe as a few) that we are jus soli. You would be asking the Conservative block of the court to do two different things it loathes. First you would be asking it to become an activist court, specifically making the 5 conservatives activist judges. Second you would be asking them to exclude the settled law, plain, and historical reading not just of a law, but of a constitutional amendment. For 4 of those 5 conservative justices being a strict constructionist will not allow them to take a modern “reasonable thinking people” view of the Constitutional Amendment.
One more thing you would be asking the Justices to do that they would loathe - you would be messing with the federal supremacy clause on a matter that is not reserved to the states but specifically constitutionally delegated to the federal government - determining who is a US citizen. The states rights argument is meaningless if not coupled with the clearly enumerated federal powers.
As to the children of people committing the crime of being in the country without the proper paperwork. At the time of the 14th Amendment people tried all kinds of things to exclude the citizenship from people and the Amendment was saying no to all of them. No to the argument that all Chinese take an oath to the emperor and so them and their children were not subject to the jurisdiction of the US (and if you don’t think we weren’t having issues with people here illegally see Chinese exclusion acts and laws dating 1868-1930). And No to sins of the parents passing to the child, and no to creative laws to get around granting anyone born here citizenship. Common Law had long held that citizenship was an acknowledgement of the location of a person’s birth. The 14th Amendment (first section) just makes that permanent.
Ninch on June 16 at 9:14 a.m.
More History Lessons: Sadly ironic, indigenous Native Americans were not given U.S. citizenship until 1924 even though all were born here as well as their ancestors over thousands of years. And women were not full citizens (could not vote in federal elections) until 1920.
I do not think in current times that denying citizenship is realistic unless based on a Constitutional amendment… which is highly unlikely. From what I can gather from this article, this is a state senator who is wanting to write a state law that overrides the U.S. Constitution (i.e. does not mirror it as the new Arizona law does). Effectively closing our borders to illegal immigrants is a much more practical measure. Arizona finally got Obama’s attention (and wrath) but he is finally taking action on the border.
spokanecougar on June 16 at 10:37 a.m.
Sounds like a state senator from Arizona likes to see and hear himself on TV.
spokanada on June 16 at 10:47 a.m.
Nice try fbhkymom. It seems like your short term memory is fading.
Do you remember this comment that you made on May 25?
“You are becoming more warped every day. I pray for your soul. You will have to answer to God some day. Then again, maybe you won’t ever be given the opportunity”
or this comment from May 26
“What these leftist, bleeding heart softies forget …”
Please don’t pretend to be something you are not.
MrNatural on June 16 at 10:52 a.m.
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”
remymartin on June 16 at 11:13 a.m.
If I understand the Wong Kim Ark case correctly, his parents were here legally as domiciled residents. That is absolutely not the case with the millions of Mexicans getting here illegally and deliberately living here illegally. There are nearly 5 million anchor babies in the U.S. since 2002, so I would not be too hasty in dismissing what Arizona is trying to do.
spokanada on June 16 at 11:36 a.m.
Well I trust that nothing will come of this and the children born in the USA will be granted citizenship under the constitution.
SpokaneLiberal on June 16 at 3:13 p.m.
Sort of remymartin
While they were here (probably) legally the court held that there was only 2 situations under which a person born on US soil would not be considered a citizen.
1. They were born to a foreign diplomat on official business.
2. They are born to someone who is part of a foreign army engaged in active hostile occupation of US soil.
misjustice on June 20 at 6:46 p.m.
@spokanada, I was thinking the exact same thing!
Look, this proposal is about inciting fear. Pure and simple, fear of the other in order to keep people up in arms and whipped up; and to make the politicians look like they are doing something in order to hoodwink all the people which are whipped up, usually by talk show hosts and politicians!
What this politician is proposing requires a Constitutional Amendment ~ which is very difficult to do. A bill to amend would have to pass both houses by a 2/3 majority in each house, then the bill would pass to the States. There, it would have to be ratified by 3/4s of the States’ Legislatures. Not saying that it can’t be done, only that it would be very difficult to garner the votes required to do it…
Interesting thread above, enjoyed it very much.