Republicans vs the 14th Amendment

The Tea Party love the constitution—except the bit that grants citizenship to all those born in the US
January 26, 2011
American politicians line up to praise the Constitution, but getting them to agree on its interpretation is a trickier business

On 6th January, the second day that the new, Republican-dominated House of Representatives was open for business, America got treated to a unique spectacle: a Tea Party-led reading of the US Constitution. It was an event designed to demonstrate how the House would henceforth be guided by the document as if it were a set of divinely inspired commandments—though legislators left out those awkward references to slavery and such.

But as this public display of love with the constitution unfolded it quickly became apparent that the old joke about marriage holds true. Gazing deep into the eyes of their founding document, some Republican legislators sighed deeply and then breathed: “I love you. Now change.”

At the same time as the reading was taking place Republican legislators from some five states were unveiling legislation aimed right at the heart of the 14th Amendment. That text, adopted in 1868, was passed in the wake of the Supreme Court’s infamous 1857 decision in Dred Scott vs Sandford, which denied citizenship to black slaves and free blacks. To remedy that injustice, the 14th Amendment explicitly provides that: “All persons born or naturalised in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The purpose of this clause was to ensure that all children born in the US are citizens; that there are not two classes of citizenship in America; and that the right to citizenship turns on an objective fact (geography) as opposed to social status (who your grandmother was). The framers of the 14th Amendment were unequivocal on the point that it conferred citizenship on the children of non-citizens. For decades the Supreme Court has affirmed that principle, starting with an 1898 decision which used the 14th Amendment to confer citizenship on the American-born child of non-citizen Chinese immigrants.

Yet some members of Congress and a group of state legislators now want to “revisit” the 14th Amendment. They seek to fix America’s towering immigration problems by honing in on a mythical swarm of “anchor babies,” who reportedly inextricably tie their illegal immigrant parents to the US when their mothers sneak across the border to give birth.

Republican Senator Lindsay Graham, of South Carolina, has charmingly referred to such parents as “drop and leave,” although who is being dropped and who left is not quite clear. Moreover, as the New York Times recently pointed out, the babies born to “illegal aliens” are not able to sponsor their parents for citizenship until 21 years after the “drop” has occurred. If these babies are indeed anchors, they are slow to dig in.

Nevertheless, these politicians propose to “fix” the birthright citizenship guarantee of the 14th Amendment, so that babies born to two illegal immigrants are not deemed citizens. As a technical matter, these legislators want to do this by enacting state legislation that would confer “state citizenship” only on people with at least one parent who is in the country legally. They would also create a “compact” between participating states to issue a special class of birth certificate to children born of illegal aliens. As a doctrinal matter they advance the argument that the amendment’s qualifying language of “subject to the jurisdiction thereof” means that the child of illegal aliens is not subject to the jurisdiction of the US. That interpretation would have stunned the framers of the amendment and stuns most constitutional scholars today. The jurisdiction clause of the 14th amendment was understood to prohibit mainly the children of foreign diplomats from claiming citizenship. It wasn’t a mechanism to negate the plain language it sought to modify.

As a constitutional matter this is all chiefly symbolic. Almost nobody believes that such legislation passes constitutional muster in the first place. The point of the exercise seems to be to draw attention to the issue; create a popular groundswell to oppose birthright citizenship; then pass legislation that will be challenged in the courts someday.

Yes, there is an urgent need to sort out the American immigration crisis. The US is indeed an outlier in granting citizenship to every baby born on American soil. But the sticky part for legislators attempting to drive a stake into the heart of the 14th amendment is that they are often the very same people who claim that the constitution is flawless, and that everything wrong with America today is a function of having strayed from the plain language of the text.

For many more Americans, the 14th Amendment represents what is best, not worst, about the constitution: its acknowledgement of human dignity and inclusivity, as well as the possibility for self-correction in the interest of forming a more perfect union.