Several times in the recent past, Republicans on Capitol Hill have taken aim at the idea of abolishing “birthright citizenship,” the principle set forth principally in the Fourteenth Amendment that provides that all persons born within the territory of the United States are, with some exceptions that typically only apply to the children of diplomats, automatically citizens of the United States. The issue came up during the 2010 midterm campaign when several Republicans, including South Carolina Senator Lindsey Graham floated the idea of altering the 14th Amendment to change the birthright citizenship rule. Given the difficult of amending the Constitution, particularly when it impacts such a hot-button issue and would change one of the most important elements of the Constitution, it was clear at the time that Graham and others were simply pandering to the party’s base, which has turned quite negative on the idea of birthright citizenship over the past several years. The idea largely fell flat during the 2010 elections, but that didn’t stop Republicans from bringing the topic up when they took control of the House in 2011. Anti-immigrant groups made the issue something of a priority as the new Republican House took over that year, and in the Senate Rand Paul and David Vitter put forward a resolution in the Senate for a new Constitutional Amendment that would redefine birthright citizenship. That effort obviously went nowhere, but the issue of birthright citizenship continued to be one that the anti-immigration forces on the right would continue to bring up in their rhetoric. Now that Republicans have control of both the House and the Senate, it would appear the issue has returned and yesterday a subcommittee of the House Judiciary Committee headed by anti-immigration stalwart Congressman Steve King of Iowa held hearings on the issue:
WASHINGTON — Democrats in Congress frequently accuse the GOP of attacking immigrants, and on Wednesday, House Republicans gave them more fodder by holding a hearing on whether the U.S. should continue the longstanding practice of granting citizenship to all children born here.
Some Republicans argue that birthright citizenship incentivizes unauthorized immigration and birth tourism. They add that the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” has been misinterpreted to apply to children of undocumented immigrants.
Rep. Steve King (R-Iowa) and Sen. David Vitter (R-La.) have both introduced bills this year to end birthright citizenship, but neither has gone for a vote.
Even if those bills never get a vote — and they likely won’t — the fact that the issue got a hearing at all provided fuel for Democrats, who were fiery in their defense of the right for babies born on U.S. soil to be citizens.
“This birthright citizenship legislation and a decision to hold a hearing on its merits are outrageous examples of just how far shameless Republicans are willing to go to demonstrate their hatred for immigrants,” Rep. Maxine Waters (D-Calif.) said at a press conference, accusing Republicans of using the bill to stigmatize and sow hate for immigrants.
At the same press conference, Rep. Luis Gutierrez (D-Ill.) said, “In Spanish-language media there will be one more piece of evidence that Republicans will do anything and everything to keep their nativist wing happy.”
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Many Republicans, including Judiciary Committee Chairman Bob Goodlatte (R-Va.), defended the decision to hold the hearing.
“The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from settled,” Goodlatte said at the hearing. “In any event, we must still determine if it is the right policy for America today.”
King was the most adamant that it was not the right policy. He questioned what would happen “to the demographics of America if this policy is not reversed,” and implied that Democrats may support birthright citizenship because they want to win elections.
“I don’t think I’m hearing an argument as to why it would be a good idea to grant automatic citizenship to any baby that could be born in the United States to any mother who could find a way to get into the United States,” he said. “That hands over the immigration policy to everyone except Americans. So I don’t know that that’s even a debate before this committee unless you want to expand your political base by any means necessary.”
Witnesses from the Republican side — John Eastman of the Claremont Institute’s Center for Constitutional Jurisprudence, Jon Feere of the Center for Immigration Studies and University of Texas law professor Lino Graglia — all argued against granting automatic citizenship to everyone born in the U.S., either as unnecessary under the law or bad policy.
“It is difficult to imagine a more irrational and self-defeating legal system than one that makes unauthorized entry into the country a criminal offense and simultaneously provides the greatest possible inducement to illegal entry: a grant of American citizenship,” Graglia, who was testifying on behalf of himself and not the university, said during his testimony.
The Washington Post’s Dana Milbank was at yesterday’s hearing and had these observations:
The 14th Amendment, King told the panel, “did not contemplate that anyone who would sneak into the United States and have a baby would have automatic citizenship conferred on them.” Added King, “I’d suggest it’s our job here in this Congress to decide who will be citizens, not someone in a foreign country that can sneak into the United States and have a baby and then go home with the birth certificate.”
It’s no small task to undo a principle, enshrined in the Constitution and upheld by the Supreme Court, that defines the United States as a nation of immigrants. It’s particularly audacious that House Republicans would undo a century and a half of precedent without amending the Constitution but merely by passing a law to reinterpret the 14th Amendment’s wording in a way that will stop the scourge of “anchor babies” and “birth tourism.”
Judiciary Committee Republicans brought in three experts to testify in support of this extraordinary maneuver (a lone Democratic witness was opposed), and they evidently had to search far and wide for people who would take this view, because they ended up with a bizarre witness: an octogenarian professor from the University of Texas named Lino Graglia.This would be the Lino Graglia who caused a furor in 1997 when he said that Latinos and African Americans are “not academically competitive with whites” and come from a “culture that seems not to encourage achievement.” He also said at the time that “I don’t know that it’s good for whites to be with the lower classes.”
This is also the same Lino Graglia who said in a 2012 interview that black and Hispanic children are less “academically competent” than white children, and he attributed the academic gap to the “deleterious experience” of being reared by single mothers. When the interviewer, a black man, said he had a single mother, Graglia said that “my guess would be that you’re above usual smartness for whites, to say nothing of blacks.”
And this is the very same Lino Graglia whose nomination for a federal judgeship in the 1980s fell apart amid allegations that he had urged Austin residents to defy a court-ordered busing plan and had used the racist word “pickaninny” in the classroom.
Abolishing automatic citizenship for babies born on American soil, and having Graglia make the case, probably won’t help Republicans overcome their problems with minorities, who are gradually becoming the majority. Democrats, by happenstance, presented a sharp contrast to the GOP effort Wednesday: Sens. Elizabeth Warren (Mass.) and Sherrod Brown (Ohio) and others met at Washington’s Carnegie Library with a coalition including immigration and civil rights advocates to launch a new jobs campaign, “Putting Families First.”
And Lawrence Downes of The New York Times points out that the proposals that King and others are talking about would seem to go against their small government principles:
First, government officials would have to be satisfied, before issuing identity papers, that at least one parent of a new baby is a citizen. This could be a nightmare in the delivery rooms across the land, lengthening the checklist of things new parents have to worry about: onesies, diapers, wipes, car seat, passport or birth certificate. The Department of Homeland Security would have to have a Neonatal Division.
And if the restrictionists think immigrant assimilation and national cohesion are problems now, think of what it will it be like when this country switches over to the European model, with a permanent underclass of resident worker aliens, having alien children, who have alien children.
As for abolishing “birth tourism,” some think the solution could be as simple as denying visas to pregnant women – making sure that “the burden of proof will be on applicants to show that they are not pregnant or intending to give birth in the United States when applying for a visa.”
That’ll be easy, for sure. Consular offices are not crowded or chaotic places now, and it will be simple enough for them to stock up on a good supply of pregnancy sticks and menstruation questionnaires.
Those who oppose birthright citizenship surely would agree that while this sounds difficult, it is worth doing, in pursuit of a purer nation, one whose citizens’ claim to be American is supported not merely by the meaningless triviality of “where they were born,” but by ties of blood, tribal affiliation and genetic pedigree.
Perhaps the oddest part of this latest crusade by King and Vitter is the idea that the definition of birthright citizenship could somehow be changed without having to go through the laborious, and doomed, process of trying to amend the Constitution itself. Under this theory, advanced by people such as Graglia, Congress could simply pass a statute under its authority to set rules of naturalization that redefines who becomes a citizen at birth and who does not. That assertion, however, would seem to directly contradict Section One of the 14th Amendment, which 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
Just over 30 years after the 14th Amendment was ratified, the Supreme Court dealt with the meaning of this provision in United States v. Wong Kim Ark, 169 U.S. 649 (1898), where it said:
[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
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The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.
The Court’s ruling in Wong Kim Ark would seem to be in line not only with the plain language of the Amendment, but also, comments made y one of the framers of the 14th Amendment when it was first pending in Congress:
The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated,“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”
In other words, the children born in the United States are citizens regardless of the citizenship status of their parents, the one exception being children of diplomats.
At it’s base, there is something rather un-American about the proposal that Republicans like King and Vitter are advancing. Even before the adoption of the 14th Amendment, citizenship in the United States was fairly straightforward. With the rather unfortunate and unjustifiable exception of African-Americans held in slavery, it was generally the rule that anyone born within the territory of the United States was an American citizen from birth. This was quite different from the citizenship rules that existed at the time in other parts of the world which depended on bloodlines and ancestry, a rule that still applies today in nation’s such as Germany. It was a rather unique idea at the time, but it was appropriate for a new nation which welcoming immigrants from all over the world who wanted to start a new life in a nation based on freedom and liberty. After the Civil War, the 14th Amendment was adopted in apart to codify that idea in the law once and for all. If you remove birthright citizenship, or change it radically as Republicans like King and Vitter are proposing, that will change the nature of what it means to be an American forever. Moreover, to the extent that Republicans are concerned about the idea of immigrants who have not fully assimilated in to American society, eliminating birthright citizenship would seem to not only guarantee that will continue but that it will continue across generations, thus creating divisions between people who live in the United States that didn’t exist before. One can argue that there are some social costs created by birthright citizenship, but they pale in comparison to the costs that would be incurred by society, culture, and the law if we ended it.
As I’ve said in the past, there’s virtually no chance that this will every actually become law. There wouldn’t be enough support to get a Constitutional Amendment out of Congress, never mind through the thirty-eight states needed for ratification. The legislative strategy would also seem to be a non-starter as well. While King’s subcommittee did hold a hearing on this issue, there’s no indication that Judiciary Committee Chairman Bob Goodlatte or any of the members of the House Leadership have any interest in moving his legislation forward, the same would appear to be true in the Senate where Vitter’s proposed bill has not even gotten a hearing. To a large degree, of course, that’s because top Republicans realize just how damaging a proposal like this could be to Republicans nationwide if it actually started moving forward. The Latino vote would be out of reach for the foreseeable future, for example, and younger voters likely wouldn’t find much appeal in the idea either. Even if it did come up for a vote, it probably would not pass the House, and most assuredly would not make it through the Senate. Then, of course, there’s the fact of an inevitable Presidential veto for any such legislation. So, in the end, what we’re really seeing here is another effort by Republicans to pander to the anti-immigrant sentiment on the far right of their party. By doing so, however, they are in danger of further alienating the very voters that they need to win national elections.
