In recent months, the discussion over whether the United States should deny citizenship to children born to undocumented immigrants has moved from the fringes of the immigration debate to center stage.
Emboldened by a recession-era political climate and the legislative victory of Arizona's stringent SB 1070 anti-illegal immigration law, which has inspired multiple spinoffs even as parts of it remain hung up in court, federal and state conservative legislators have introduced a spate of proposals in the past month aimed at ending the longstanding U.S. policy of automatic citizenship at birth.
These measures seek to change how U.S. citizenship is defined under the 14th Amendment of the Constitution, either by amendment or reinterpretation. Here is how Section 1 of the amendment reads:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Measures proposed far include a Senate resolution that calls for a straightforward constitutional amendment; a House bill that would amend the Immigration and Nationality Act to limit citizenship at birth; and anti-birthright citizenship bills introduced in three states, including four bills introduced last week in Arizona that seek to define who is a citizen of the state, and differentiate between children of undocumented immigrants and other infants on state-issued birth certificates. The ultimate goal of the state bills' proponents is to force a Supreme Court review of the 14th Amendment.
More bills are expected to be filed, at least at the state level, where a coalition of like-minded legislators is leading a coordinated effort. As the debate heats up, here are a few key things to know:
- The 14th Amendment has a long and complex history. Ratified in 1868, it was one of three changes to the Constitution during and after the Civil War era known as the Reconstruction Amendments. The 13th abolished slavery, the 15th prohibited the states from denying the vote to anyone based solely on race. Among other things, the 14th reversed a decision made by the Supreme Court more than a decade earlier in Dred Scott v. Sandford, which had held that people of African descent, at the time still enslaved, could not be U.S. citizens.
- The chief argument of anti-birthright citizenship advocates hinges on the phrase "subject to the jurisdiction" in the first line of the 14th Amendment, which proponents of ending birthright citizenship believe should be reinterpreted to exclude undocumented immigrants and their children. The unorthodox state approach, which relies on bills intended to land states approving them as law in federal court, leans heavily on this argument. Legal experts see proposals such as a constitutional amendment facing long odds, but some believe the state bills could at least land before a judge.
- The state bills are part of a larger effort by a group called State Legislators for Legal Immigration, a coalition led by Republican Pennsylvania Rep. Daryl Metcalfe and that is associated with the controversial immigration-restriction group Federation for American Immigration Reform. The bills introduced at the state level so far are based on a blanket piece of model legislation, drafted by attorneys working for the group, that was unveiled in early January.
- Birthright citizenship, otherwise known as jus soli (Latin for "right of the soil") citizenship, is the norm in North, Central and South America. Outside the onetime New World, however, straightforward jus soli policies are rare. The norm in Europe, Asia and in much of Africa and elsewhere is some form of jus sanguinis (Latin for “right of blood”) citizenship, typically granted to children born to a national of that country. Policies vary widely country by country, and several nations have modified their laws in recent decades, among them Australia, France, Germany, and the United Kingdom.
- The Supreme Court has decided on birthright citizenship before. A landmark case that set the precedent for how U.S. citizenship began in 1895, after a young San Francisco-born man named Wong Kim Ark was denied re-entry after returning from a trip to China to visit his parents, immigrants who had moved back there to live. At the time, Chinese immigrants had been barred from naturalizing by the Chinese Exclusion Act of 1882, and the vast majority were denied entry. Wong challenged the federal government on the grounds that he was an American-born U.S. citizen. In 1898, the Supreme Court decided in his favor, citing the 14th Amendment in the decision.
Some anti-birthright citizenship advocates have suggested that the policy helps drive illegal immigration, providing an incentive for undocumented immigrants to have children on U.S. soil. However, the results of a Pew Hispanic Center study released earlier this week found that more than 90 percent of the undocumented parents who had babies in the United States over a one-year period ending last March had been here several years already.