Birthright Citizenship Under Threat - Again
How soon we forget. Or maybe we just weren't paying attention from the beginning. For many it seems the current obsession with "anchor babies" and birthright citizenship came out of nowhere. But this report by researcher Scott Keyes reminds us that "Republicans have been pushing this idea for nearly two decades, introducing 28 separate bills to eliminate birthright citizenship since 1995."
Most recently, what started out as isolated rumblings has morphed into a unified movement spanning several states. A key player in the movement is none other than law professor Kris Kobach, a candidate for the office of Kansas Secretary of State. Kobach is an architect of Arizona's SB 1070 and has litigated other anti-immigrant cases around the country.
The issue is simple: the 14th Amendment to the U.S. Constitution states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." That amendment was added to the Constitution in 1866 not to add something new, but to restore something old that had been torn from our legal fabric by the "Dred Scott" Supreme Court decision of 1857.
Noted constitutional scholar (and conservative Republican) James C. Ho explains it very simply: "The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth. Although the doctrine was initially embraced in early American jurisprudence, the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizenship to the descendents of slaves.
Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law." (Ho's 2006 article, "Defining American: Birthright Citizenship and the Original Understanding of the 14th Amendment," is a key piece of the puzzle, easily accessible by non-lawyers.)
Critics of birthright citizenship make the claim - ridiculous on its face, if one thinks about it for more than two seconds - that unauthorized immigrants are not "subject to the jurisdiction" of the federal government, and, therefore, their U.S.-born children are lumped in with the U.S.-born children of foreign diplomats and enemy soldiers.
This nonsensical assertion flies in the face of common sense and everyday practice: if unauthorized immigrants are not "subject to the jurisdiction" of the federal government, then by what authority does the federal government arrest and deport them?
Margaret Stock and others convincingly demonstrate that abolition of birthright citizenship would require the creation of a huge new federal "birth police" bureaucracy to adjudicate the lineage of every newborn, and would create an underclass of stateless children.
Is that what advocates of "limited government" really want?
Now that Republicans have made solid gains in the House, we can expect more hearings on birthright citizenship. Let's hope the committee members first read these background materials prepared by the Immigration Policy Center. Maybe they'll take their "limited government" mantra to heart, cancel the hearings, and leave the 14th Amendment alone.