Can the 14th Amendment Defend Itself?

IOWA CITY, Iowa (By Linda K. Kerber is May Brodbeck Professor in the liberal arts, and professor of history, lecturer in law in the Department of History at the University of Iowa) February 16, 2011 ― The 14th Amendment to the U.S. Constitution clearly states that all people born in the United States are citizens. But some Republicans, in their wide-ranging attack on illegal immigrants, treat the amendment as an antique inheritance from the Civil War era that turned into an overly generous gift to generations of immigrants.

They neglect the intentions of its framers ― yes, original intent ― that it be a source of benefits to the nation by securing the allegiance and obligations of all who live here and by ensuring against successive generations without clear national identity.

Some hurl venom and abuse at the amendment's opening sentence: "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."

Even generally polite legislators use crude language: Pregnant women are said to enter the United States illegally or on tourist visas to "drop a child" so their babies will serve as "anchors," dragging the rest of their relatives into citizenship under the priorities given to citizens seeking to unify families.

Now Republican Sens. Rand Paul of Kentucky and David Vitter of Louisiana have proposed to amend the U.S. Constitution to require that children born in America be considered citizens only if they have at least one parent who is a citizen, a lawful permanent resident or an active member of the military.

They and others argue that the phrase "subject to the jurisdiction thereof," which the framers intended to exclude Native Americans, should be reinterpreted to exclude all foreigners, even those traveling here on visas. Although, of course, these foreigners are subject to our jurisdiction if they commit a crime or get a traffic ticket.

More than a century ago, the U.S. Supreme Court ruled that the only exceptions are "the children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies during a hostile occupation, and children of Indian tribes owing direct tribal allegiance." The 14th Amendment "includes the children of all other persons, of whatever race or color, domiciled within the United States." [U.S. v. Wong Kim Ark, 1898]

The fears generated by the term "anchor babies" are unfounded in fact. A citizen child cannot request immigration priority for parents and siblings until he or she is 21; the process afterward takes years, sometimes many years.

Pregnant women who enter the U.S. illegally are coming primarily because they are desperate for work. The Pew Hispanic Center recently reported that nearly all mothers in the country illegally had been so for more than a year, and more than half had been in the U.S. for five years or more before giving birth to a citizen child.

And it is surely worth noting that race is a factor in this debate. Little anger has been directed at undocumented people entering from Canada or Irish temporary workers in Boston overstaying their visas.

The concept of birthright citizenship in the United States has deep roots in English history. After Queen Elizabeth's death in 1603, King James VI of Scotland became simultaneously King James I of England. The common law principle that "a person's status was vested at birth, and based upon the place of birth" saved a lot of argument; his subjects in England and in Scotland were his subjects in the new United Kingdom.

That principle served the United States after the Revolution, eliminating the need to struggle over settling on specific requirements of national citizenship. White women were considered citizens from the beginning, even though, if married, they could not control their earnings or property. They would have to struggle for suffrage, but they never had to fight for nationality. When the end of slavery required the concept of birthright citizenship be clearly articulated, it moved easily into the 14th Amendment.

The framers of the 14th Amendment were not romantics. They had lost their illusions in the Civil War. They were facing a vicious effort by the states of the former Confederacy to undo freedom for African Americans by a wave of laws ― the "black codes" that undermined equal citizenship. It is clear from the records of the debate in 1868 that many members of Congress had to swallow hard before voting, but they knew that without constitutional reinforcement, the South would thumb its collective nose at the Bill of Rights.

Children without birthright citizenship are in a weak position from which to claim the inalienable rights to which natural law entitles them. The Reconstruction Congress knew that birthright citizenship ensures only one class of citizens, and that virtually all inhabitants would, generation after generation, owe their allegiance to the nation.

Early in the debate on the 14th, Sen. Edgar Cowan of Pennsylvania asked skeptically whether "it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?" Sen. Lyman Trumbull of Illinois, who played a leading role in shaping the amendments, responded: "Undoubtedly ... the child of an Asiatic is just as much a citizen as the child of a European."

A generation later, Trumbull's position was upheld by the U.S. Supreme Court, in a firm majority opinion that held that Wong Kim Ark, who had been born in San Francisco, was a citizen even though, thanks to the Chinese Exclusion Acts of 1882, his parents could never become citizens.

We should understand the advantages to the nation that the 14th Amendment confers. Unstable nationality haunts our own world. Last summer, the deportations of thousands of Roma from France dramatized the vulnerability of those who lack a secure nationality. Blending theories of citizenship by birth into theories of citizenship by blood, the Dominican Republic denies citizenship to the children of Haitian refugees, claiming as a principle that "an illegal person cannot produce a legal person." This is the model that the U.S. is now called upon to follow.

Birthright citizenship has protected the U.S. in just the ways its framers intended. We do not contribute to the stupendous growth of a stateless population that floods the globe as refugees, asylum seekers, trafficked persons and irregular migrants. As irregular migration carries more and more people across international boundaries, new restrictions are being added to nationality rules. If such restrictions are added in the United States, they will introduce the very kind of instability the 14th Amendment was meant to prevent.

Whether tinkering with America's strong tradition of birthright citizenship comes in the form of legislation or constitutional amendment, it is ill-advised.