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Editorial Advisory Board: Immigration reform requires courage, not rhetoric

Architects of the U.S. Constitution took care to make alterations difficult. Amendment of the Constitution may be proposed by a two-thirds vote of both houses of Congress or by a special convention petitioned by two-thirds of the state legislatures. Any proposed amendment must then be ratified either by three-fourths of the state legislatures or by three-fourths of special state conventions, as directed by Congress. Over the life of the Constitution, some 5,000 amendments have been introduced in Congress; 33 have been formally proposed for ratification; and only 27 were ratified. The average time for ratification has been two-and-a-half years.

This burdensome amendment procedure should discourage tinkering with the Constitution on the whim or passion of the moment. And it should reserve any consideration of amendment for serious discussion rather than political posturing. But it is political posturing that marks this year’s proposals to alter the Fourteenth Amendment for the purpose of eliminating its grant of citizenship to those born in the United States.

The so-called Citizenship Clause, adopted in 1868, guaranteed citizenship for the children of freed slaves. It is purposefully simple: “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.” Unlike other Constitutional amendments, it is subject to little interpretation. But according to a growing number of lawmakers, either it does not mean what it says or it has outlived its usefulness.

Earlier this year, Senators Rand Paul and David Vitter introduced a legislative “resolution” that would deny birthright citizenship to anyone without at least one parent who is a citizen or legal resident. In the House of Representatives, Steve King, joined by more than 60 co-sponsors, has proposed legislation to the same effect. Such resolutions, even if not explicitly stated, call for a constitutional amendment. But to some, the legislation — and similar proposals in a number of states — simply clarifies the meaning of the birthright Citizenship Clause.

Advocates of the Paul-Vitter proposal argue that the Fourteenth Amendment — enacted for the purpose of prohibiting Southern states from restricting the citizenship rights of newly freed slaves — was never intended to grant citizenship to the children of illegal aliens. But in 1868, there were no “illegal aliens.” Immigration was unrestricted. Anyone arriving in the country could stay as a resident alien or, after a number of years, apply for naturalization.

Nor was the “subject to the jurisdiction thereof” clause meant somehow to exclude non-citizens. In a late nineteenth-century opinion, U.S. v. Wong Kim Ark, the Supreme Court explained that this clause was to except certain groups recognized in English common law: children of foreign diplomats, those born on foreign public ships, and those born of enemies of the U.S. during a hostile occupation. To these common law categories, the court added the then-recognized historical exclusion of the children of Indian tribe members, “not taxed.”

Thus, the Supreme Court concluded, “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory … including all children here born of resident aliens.” The court has since assumed without comment that a child born to an undocumented alien is a citizen.

In support of a constitutional amendment to remove the Citizenship Clause, Senator Lindsey Graham has opined that “birthright citizenship doesn’t make so much sense when you understand the world as it is.” The world to which Senator Graham alludes is one in which undocumented immigrants are said to enter the U.S. for the purpose of giving birth to “anchor babies,” whose citizenship status will eventually pave their parents’ path to citizenship.

Although this belief enlivens much of the birthright citizenship debate, it is a misconception. The Pew Research Center found that fewer than 9 percent of undocumented immigrants gave birth shortly after arrival. And there is scant evidence that any entered this country for that reason.

Any child born into citizenship must wait until age 21 to apply for a parent’s legal residency. Generally, if the petition is granted, the parent must leave the United States and wait for 10 years before re-entry. It is difficult to believe that many undocumented immigrants have arrived here as part of a 31-year plan for citizenship.

But, since there is no real chance of changing the Constitution to remove the Citizenship Clause, the issue makes for easy demagoguery. And that is a shame. When the rhetoric and sloganeering are done, lawmakers have not summoned the political courage to engage the necessity of serious immigration reform.

Broadening the debate

Since 9/11, in response to the many congressional mandates, the number of border guards has doubled. The budget for border security is now more than $17 billion. Writing recently in The Wall Street Journal, James W. Ziglar and Edward Alden estimate that the cost of funding now-existing congressional mandates regarding border enforcement would exceed $46 billion, a price not likely to be paid.

Nonetheless, although illegal border crossings have diminished by 70 percent since 2000, neither Democrats nor Republicans are currently willing to consider immigration reform beyond calls for even tougher border security. But while the price of “zero tolerance” border security is ever increasing, Ziglar and Alden argue, it is unattainable. We must broaden the debate.

President George W. Bush was willing to explore immigration reform and supported a proposal to grant illegal aliens temporary worker permits. In doing so, President Bush observed the obvious: We cannot round up and deport the entire undocumented population, now estimated at over 12 million, representing one of every 20 workers. Only last year, Senators Lindsay Graham and Charles Schumer proposed comprehensive immigration reform. Writing in The Washington Post, Graham and Schumer outlined a plan that included a tamper-proof ID system, a process to admit temporary workers, and implementation of a “tough but fair path to legalization for those already here.” The proposal had deserved support on both sides of the aisle.

Earlier this year, UCLA professor Raul Hinojosa-Ojeda released a study showing that immigration reform providing a legal path to citizenship could generate an increase of more than $1.5 trillion in Gross Domestic Product over the next 10 years. A mass deportation system, however, would cause a loss of $2.6 trillion over the same period.

A report by the Cato Institute reached a remarkably similar conclusion, finding that a path to legalized citizenship would increase U.S. household incomes by $180 billion by 2019. And a University of Southern California study concludes that if California’s unauthorized workers were legal, they would have earned over $29 billion last year, causing a domino effect to stimulate the state’s sagging economy. The resultant growth would directly increase consumption spending by some $1.75 billion, which would generate additional indirect spending, which, in turn, would generate thousands of additional jobs.

As Reconstruction-era lawmakers debated the effect of the proposed Citizenship Clause of the Fourteenth Amendment, the sentiments expressed were not all those of liberty and equality. Some voiced hostility and fear that children of disfavored ethnic groups — Chinese and gypsy specifically — would be the beneficiaries.

But in the end, by providing citizenship by birth, regardless of race or previous condition of servitude, the Reconstruction framers rose to embrace the notion of citizenship jus soli — by the right of the soil — and not according to bloodline. In the same spirit, politicians should now raise the immigration debate above cheap and pointless shots at the Fourteenth Amendment’s principles and purpose.

Editorial Advisory Board member John S. Bainbridge Jr. did not participate in the adoption of this opinion.


  1. In discussing the need to amend or reinterpret the 14th Amendment, we also need to consider the issue of “Maternity tourism.” This is a growing problem that we must address. It is really only a question of whether we tackle this issue now, or later when it’s become much more difficult to deal with.
    I got a little first-hand insight into “maternity tourism” the other day in class. I am an ESL teacher in one of our local adult schools. Many of my students are from China. Two of my newer students from China are visibly pregnant and will give birth next month. They are here on tourist visas. They both told me that they have no intention of remaining here once their babies are born. They explained that because of China’s one-child policy, they would normally be fined for giving birth to a second child. But when these infants return to China, they will be American citizens. They will not be registered as Chinese citizens, and will not count against the one-child policy.
    My students are not breaking the law. They came here legally and will soon return to China. They are not wealthy. They borrowed money from family and friends to make the journey. They share a crowded room, attend free English classes, and spend as little as possible while here. Costs related to pregnancy are not inconsiderable in China. In the U.S., women coming here to give birth receive medical care for free at tax-payer expense, as provided to low-income individuals. How strong a magnet is that?
    My students will soon return home with their infants. Their children will grow up in China with Chinese parents having no connection to the U.S. They will be raised without knowledge of our country’s culture or what it means to be a citizen. So much for jus soli. Whatever happens to these children, the U.S. will retain some degree of responsibility for their well-fare and well-being, just as it does for any U.S. citizen residing abroad. In the future, they may decide to return to the U.S. along with their family members. To quote one website recruiting expectant mothers abroad: “So your decision is more than just a few days to change a person’s life, but the fate of the whole family.”
    This is nothing new. According to one source, 200,000 women already come into our country annually to give birth in this fashion. What has changed is that it is now easier to do and is a viable alternative to more people around the world. People have more money, more information, and more access to cheap flights. While it is not cheap to travel to the U.S. to have one’s baby, there are now millions of people in China and elsewhere who can afford to “game the system” in this way. As countries like China grow more prosperous and crowded, we can expect to see more women taking advantage of this scheme.
    My opinions in this matter have nothing to do with anti-immigrant sentiment. We are a nation of immigrants. I recognize the great contribution immigrants have made to our country. Rather, it is out of love and concern for our country that this issue must be addressed.
    Unfortunately, “strict enforcement of existing laws” will not address this problem. We ignore this issue at our peril. As long as this untenable situation exists, we as a nation have no real ability to determine who gets the privilege of becoming an American citizen and who does not. This is not acceptable.

  2. Do the editors really believe that illegal aliens, who likely have less than a grade school education, understand U.S. immigration law–or the fact that they even if they give birth in the U.S., they’ll need to wait decades to get citizenship, if ever? And even if they did, why would it matter? Even legal Hispanic immigrants, especially those from Mexico, have had historically low naturalization rates. As long as the illegal alien can live and work here without worrying about being deported–the situation for much of the past 3 decades–why would they care about citizenship? And in the end, it really doesn’t matter whether illegal aliens come here specifically to give birth. What matters is that they do, and at a higher rate than even in their home countries. Illegal aliens also collect welfare on behalf of their U.S.-born kids.

  3. Re: Mr. Bernstein’s comments. I taught in the UAE, which is home to a number of Lebanese expats. One of my MBA students was one such. He had arranged for his wife to visit the U.S. TWICE in order to give birth to U.S. citizens. These children are growing up in the Arab World, with Arab parents and no love for or loyalty to the United States. In fact, a U.S. “citizen”, Hamdi, born to Saudi parents studying in Louisiana was convicted of terrorist activities and, as a condition of his return to Saudi Arabia, gave up his U.S. citizenship.

    I find it ironic and irrational that we give citizenship based on birth here, even those who do not live here and are raised by foreign parents, yet “Dreamers” are demanding that we give foreign-born illegal alien children citizenship because they’ve supposedly lived here so long and are “Americans”.