State Legislation Targets Birthright Citizenship

After the calamitous bloodletting of the American Civil War, Congress faced the task of binding the nation back together, and ensuring – once and for all, most of them surely hoped – that states would no longer have the right to allow human beings to be kept as slaves. One of the key constitutional amendments of the Reconstruction period was the 14th Amendment, adopted in July of 1868; among other things, the measure reversed the infamous 1857 Dred Scott decision, which held that African-Americans could not be United States citizens. The first section of the 14th Amendment provides 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. No State shall make or enforce any law which shall abridge the privileges and 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.”

Now comes a coalition of state legislators, led by an Arizona lawmaker, seeking to narrow the scope of the 14th Amendment by taking away birthright citizenship from children born to illegal immigrant parents. They propose to do so not by amending the federal constitution, but by state fiat. (See Arizona’s Birthright Citizenship Bill in D.C. Spotlight, by Dan Nowicki, Erin Kelly, and Daniel Gonzalez, The Arizona Republic, 06.Jan.2011.) According to the Arizona Republic, legislators from Arizona and four other states recently held a press conference in Washington to announce plans for legislation that would place the issue of birthright citizenship squarely before the Supreme Court, in the hopes of triggering a reversal of settled law: that anyone born in the United States is automatically a citizen.

The Arizona Republic summarized the draft bill, saying it would:

“…define who is and isn’t a citizen of a particular state. It also says state citizenship doesn’t carry with it any special rights, benefits, privileges or immunities under law. Babies born to illegal immigrants in states that pass the legislation would not be stripped of any rights or benefits they now receive, the lawmakers said.”

As the Chicago Tribune reports, the effects of such a law would be far-reaching, and potentially would “exclude the children of many naturalized citizens who retain citizenship in their native lands (as allowed in Canada, Britain, and Israel, among others). It would also bar those born to foreigners here on student visas – or even permanent resident aliens.” (See A Birthright, and a Mess of Pottage, by Steve Chapman, Chicago Tribune, 16.Jan.2011.) The concerns do not end there: in a recent radio story, NPR cited critics who said the state proposals would “punish babies for the behavior of their parents,” and potentially force everyone to prove that their ancestors entered the country legally. (See GOP Lawmakers Target Birthright Citizenship, by the Associated Press, National Public Radio, 05.Jan.2011.)

According to the New York Times, this same coalition of state lawmakers also proposes creating two types of birth certificates for children born in their states: one for children of citizens, the other for children of illegal immigrants. (See Birthright Citizenship Looms as Next Immigration Battle, by Marc Lacey, New York Times, 04.Jan.2011.) As the Times points out, most constitutional scholars believe that such a law would be “patently unconstitutional,” offending both the 14th Amendment and a long-settled precedent interpreting its citizenship clause – specifically, the 1898 case of U.S. v. Wong Kim Ark, in which the Supreme Court held that the citizenship language of the 14th Amendment did apply to the child of two Chinese immigrants.

These state lawmakers are clearly barking up the wrong tree. Immigration policy is and remains a federal prerogative; creating a patchwork of state immigration restrictions is not only unwise, it is almost certainly unconstitutional. That said, if these measures gain momentum, enough Congressional concern might be provoked to put comprehensive immigration reform back on the legislative agenda.