Monday, November 21, 2005


There is currently an immigration reform bill in the House of Representatives which would, if passed, bring an end to “birthright citizenship”. Birthright citizenship is currently guaranteed by the 14th Amendment to the Constitution, which was ratified on 28 July 1868:

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.

This “citizenship clause” was at least partially in reaction to the Supreme Court’s Dred Scott decision of 1857, which had stated that Dred Scott did not have the rights of a citizen because he was “a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves.” By extension, the ruling meant that no black person could ever be a citizen of the United States, and therefore a constitutional amendment was necessary to change that law.

Birthright citizenship is currently an issue for two reasons, the first being illegal immigration and the second being fatherland security. As to illegal immigration, everyone agrees that it is a problem, however there is disagreement as to whether changing our citizenship laws would be a valid means of addressing that problem.

Rep. Thomas Tancredo (R-Col), a co-sponsor of the immigration reform bill, has said that we must end birthright citizenship because it is nothing more than an enticement that attracts illegal aliens over the border into the US.

On the other side of the debate, Michele Waslin, Director of Immigration Policy Research for the National Council of La Raza, has claimed that changing birthright citizenship would merely increase the number of undocumented immigrants and create a permanent underclass of Americans.

The second issue, fatherland security, stems from the Supreme Court case Hamdi v Rumsfeld, in which the Court ruled: “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.”

Yaser Esam Hamdi, arrested in Afghanistan, is a US citizen by virtue of the fact that he was born in Louisiana while his father was working there temporarily. The family moved back to Saudi Arabia while Hamdi was still an infant.

Chris Paulitz, a spokesman for Sen Kay Bailey Hutchison (R-Tex), said in a statement prepared for The Monitor:

When parents from terrorist-harbouring countries come to America temporarily and have children – with no intention of those children growing up American or supporting our country – their children are still US citizens. After growing up taught to hate America, they still have the ability to freely come and go in our country.

I wonder if he managed to communicate that with a straight face.

I have read many arguments on both sides of the issue. Some of them are quite compelling, but several of the arguments for doing away with (or re-interpretation of) the 14th Amendment are paranoid and/or ridiculous. I do not know how to solve the complicated problem of illegal immigration, but I believe that better ways can be found than eliminating birthright citizenship, which is, after all, a fundamentally American convention. As to the second issue, anyone that thinks we can solve security problems by denying citizenship to children is really way off the mark.


Anonymous said...

You may find this useful (Flickr for polls)

Monkey's Max said...

Anon, no, not really.

Chris Laurel said...

Thanks for the first decent post on birthright citizenship I've seen. But the issue here is not whether birthright citizenship makes sense or whether we should continue to enshrine it in our Constitution. The issue is that Reps. Nathan Deal and Tom Tancredo, who are sworn to uphold the integrity of our Constitution, are salivating over crafty ways to legislate around it to further a policy position. This is ethically wrong. The fact is birthright citizenship was always the law of this land, and in the 1860s was enshrined as a right because of its lack of universal application (slaves). Back then it was not “terrorists” who were used to scare people out of supporting the 14th Amendment, but American Indians, Gypsies and the Chinese that were the bugaboos to justify the rationale. Regardless, on May 30, 1866, the Senate overwhelming voted 3 to 1 to give this right to us, without qualification.

Perry's article in The Monitor was comprehensive and points out it was a common law principle we inherited from England. It also fit with the policy of rapid population for a young country quickly expanding its borders. It was explicitly stated in the Senate floor debate, without qualification, that the children of illegal aliens are citizens.

The Supreme Court said in United States v. Wong Kim Ark that the United States government could not deny citizenship to anyone born in the United States — even children of foreigners. Don't believe me? Look at what Congress's own reporting service wrote on the subject November 4, 2005.

There is no justification for our leaders, elected to uphold the Constitution, to openly flout its procedure when thinking of ways to defeat its principles. Nathan Deal and Tom Tancredo’s efforts are worthy of contempt and the voters should hold him accountable.

I have all of this information documented on my blog ( and I invite anyone to refute it.