Birthright Citizenship: What It Is and Why We Need to Preserve It

Written by on August 21, 2015 in Birthright Citizenship with 3 Comments

5897901526_7ef7f0305b_bThere has been a media frenzy over one of the more draconian components of Republican presidential contender Donald Trump’s immigration policy platform. In his plan, released earlier this week, he writes that the U.S. should “End Birthright Citizenship.” However, despite the attention Trump is getting for this, he is not the first—nor the last—to suggest changing the Constitution as a way to reform our immigration system. Volumes have been written in defense of birthright citizenship, yet it is regularly attacked by anti-immigrant politicians.

In 2010, when the Arizona legislators behind SB1070 went after birthright citizenship, Michele Waslin, Ph.D. explained the background and ramifications of changing it:

“Birthright citizenship, or the principle of jus soli, means that any person born within the territory of the U.S is a citizen, regardless of the citizenship of one’s parents. This principle was established well before the U.S. Constitution, and was enshrined in the Fourteenth Amendment. It was necessary to include the citizenship clause in the Fourteenth Amendment because the Supreme Court’s Dred Scott decision of 1857 had denied citizenship to the children of slaves. Following the Civil War, the Fourteenth Amendment righted that injustice and became the foundation for civil rights law, equal protection, and due process in the United States.”

Waslin also explained the ramifications of altering it:

“Far from affecting only illegal immigrants, birthright citizenship impacts everyone. If simply being born in the U.S. and having a U.S. birth certificate were not proof of citizenship, Americans would have to navigate complex laws to prove their citizenship. Other than a birth certificate, most Americans do not have government documents that establish U.S. citizenship.”

In 2015, when the House Judiciary Committee held a hearing to attack birthright citizenship, Mark Noferi, Esq. wrote that repeal would not be upheld by the Supreme Court and attacks are based on faulty reasoning:

“…it is doubtful that legislation to repeal birthright citizenship would be constitutional. The Fourteenth Amendment to the U.S. Constitution states 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.’ Based on this, the Supreme Court has upheld birthright citizenship for children of foreigners several times—holding that the Fourteenth Amendment means what it says, especially in light of its history…Moreover, repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth. ‘Anchor babies,’ a term the American Heritage Dictionary calls offensive and disparaging, make no sense given that a child cannot sponsor a parent for citizenship for at least 21 years.”

Marshall Fitz, Esq. also defended it as a core part of our American heritage and reminds those who continue to attack it of its history:

“Why do these Republican members want to revive the long moribund policies that their party’s most revered president (Lincoln) fought so hard to eradicate? Why do they want to create once again a legally sanctioned vulnerable and exploited underclass in this country? In order to advance an extreme anti-immigrant agenda under the dubious theory that changing the 14th Amendment’s citizenship rules will deter unauthorized immigration.”

Fitz adds that the “14th Amendment is not just another immigration policy…It defines who we are as a nation” and “categorically rejects the notion that America is a country club led by elites who get to pick and choose who can become members.”

Eliminating birthright citizenship would do nothing to solve our immigration issues. In fact, it could have the opposite effect by increasing the size of the undocumented population. The Migration Policy Institute study found that if citizenship were denied to every child with at least one unauthorized parent, the unauthorized population in the U.S. would reach 24 million by 2050. Ultimately, this idea does nothing to advance real, immigration reform.

Photo by Katelyn Kenderdine.

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  • Jon C

    You might enjoy the legal issues in the following three links: 1) That Time the Supreme Court Said the Constitution Definitely Protects Birthright Citizenship http://www.nationaljournal.com/politics/that-time-the-supreme-court-said-the-constitution-definitely-protects-birthright-citizenship-20150819?ref=t.co&mrefid=walkingheader via National Journal 2) Lessons for Trump from a 14-yr-old girl http://on.msnbc.com/1K7osYz via The Last Word With Lawrence O’Donnelll Birthright predates the ENTIRE US Constitution! 3) The Case at the Heart of the Birthright Citizenship Battle http://nbcnews.to/1fvkT1w via NBC News

    • RetiredINS

      Two of your citations referred to Calvin’s Case in 1608, but failed to name it. It became the law in all 13 colonies and is the reason that children of French, Dutch, and German immigrants became full British citizens and citizens of the colony in which they were born. Free slaves were given citizenship in many colonies and allowed to vote. As your citations point out, it was the Dred Scott case that required a Constitutional amendment. The Civil Rights Act of 1866 said that all persons born here are citizens, but exempted Indians not taxed, and children of foreign visitors. The language of the 14th Amendment went further than the 1866 law and said that all children born here, and subject to the jurisdiction of the United States are citizens. It was understood that diplomats and invading armies are not subject to the jurisdiction. Section 4 of the 14th Amendment exempted Indians not taxed, since they were not a part of American society.

      As a former INS officer, I found the 14th Amendment easy to enforce. A change would wreck havoc with the ability to prove American citizenship. It would eventually lead to people born in this country with no citizenship in any country. How do you deport someone who has no citizenship?

  • radsenior

    Lest there be any doubt the regressive have and will continue to attack the very root to attain their wants at the expense of the people!

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