Birthright Citizenship

The Fourteenth Amendment to the U.S. Constitution affirmed the concept of birthright citizenship, i.e., determining a person’s citizenship by place of birth.  Section 1 of the Fourteenth Amendment provides “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.”[1]  This provision echoes the founding precepts of our Declaration of Independence that, endowed by their Creator with inalienable rights, “all men are created equal”; it embodies the elegant thoughts of Abraham Lincoln in his July 4, 1858 speech and later the Gettysburg address,  ^[2] and it inspired the words on our Statute of Liberty as it welcomes new immigrants to this day.[3]   This Constitutional provision insures “that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors . . . have the inalienable right to citizenship and all its privileges and immunities.”[4] It reflects the American Dream that only hard work and ability, not ancestry or class, should determine one’s achievement in our nation.  As Jews we, or our immigrant forebears, or both have benefited greatly from this uniquely America ethos.

In a rash of anti-immigration political demagoguery, numerous politicians contend that many Hispanic immigrants are illegally coming to our shores to “drop Anchor babies” so that their child and, through it, the entire family may become legal citizens. Apart from a few unverified anecdotes, there is no data showing that undocumented immigrants are coming to the United States in any significant numbers for this reason, rather than for American economic opportunities or to avoid persecution in their countries of origin.[5] Bills have been introduced in Congress, and several of the states are considering legislation defining state citizenship with additional requirements. Many of these proposals and the political arguments supporting them willfully ignore the historical meaning and clear judicial precedents interpreting Section 1 of the Fourteenth Amendment. Supporters of these proposals maintain, erroneously, that undocumented immigrants are not “subject to the jurisdiction of the United States” since they are citizens of and owe allegiance to, their countries of origin and that this language has been “misinterpreted”.[6]  There is also a movement to encourage two-thirds of the state legislatures to pass resolutions calling for the first constitutional convention ever under Article V, of the U. S. Constitution to amend the Constitution.  Since there are no rules or procedures governing such a convention, it is possible that it could attempt to amend any provision of the Constitution it chooses, not just the birthright provisions of the Fourteenth Amendment.

Studies show that repeal of the birthright citizenship provisions would actually increase the number of undocumented aliens in the United States and create an unprecedented permanent, self-perpetuating class of unauthorized immigrants with hereditary disadvantages.[7]

In addition, by making citizenship depend even in part on ancestry, rather than objectively on place of birth, all citizens and their descendents would lose the ability to prove their citizenship by their birth certificate alone. They would need additional documentation of the United States citizenship of one or more (depending on the proposed new requirement) of their ancestors, and perhaps multiple generations of ancestors. In time proof of their citizenship would prove to be an unfair, expensive administrative nightmare for millions of Americans, including many of non‑Hispanic ancestry.

The JCPA believes that:

• Important battle lines are being drawn both in Congress and state by state on the matter of birthright citizenship which is of vital concern to our interests and moral imperatives. Immigration and citizenship matters belonging exclusively within the purview of the federal government are being urged upon the states in an explicit challenge to our constitutional structure provided in the Fourteenth Amendment and Article VI.[8]
• Efforts to amend the federal Constitution or to interpose state legislation to force a judicial challenge to settled law concerning the meaning of the Fourteenth Amendment pose a profound danger to the rights of citizens, to the ability of all of our citizens to prove their citizenship without undue administrative burdens, and to our country’s core values. Often politically motivated, these efforts threaten to undermine our historic role as a welcoming nation, attracting the finest minds in the world to become productive, innovative citizens here without distinction in class or rights from those who are native born or whose ancestors immigrated earlier.

The community relations field should:

• Make a high priority of educating our community and, in partnership with others, the general community as to the dangers of amending the birthright citizenship provisions of the Fourteenth Amendment, the lack of justification for such amendments, the value of these provisions as a unique expression of the American Dream, the administrative difficulties that the proposed amendments would cause, and the dangers of state legislative resolutions calling for a constitutional convention to amend the Constitution to eliminate or limit birthright citizenship.
• Oppose efforts in Congress, or in State legislatures, or by initiative petition to amend or circumvent these provisions, to challenge their settled interpretation through costly and frivolous litigation or to call for a constitutional convention.

[1] The principal purpose of Section 1 was to explicitly overrule Dred Scott v. Sandford, 60 U. S. 393 (1856) which held that U.S.-born Negroes whose ancestors were slaves could never become citizens of the United States regardless of the state in which they were born or resided. It majestically and explicitly rejected the racist reasoning of that case. The Fourteenth Amendment also provides for its enforcement by Congress, not the states, and explicitly provides that no State may deprive any citizen of any of the privileges and immunities of a citizen, of life, liberty or property without due process, or of the equal protection of the laws.

[2] In his 1858 speech Lincoln pointed out that those who were not blood descendents of the nation’s founders and the drafters of our Declaration and Constitution were, nevertheless every bit the equal of these blood descendents once they claimed the moral principles of the Declaration of Independence and the Constitution as their own. Discussed and quoted in Gary Wills, Lincoln At Gettysburg (Simon & Schuster 1992) at 86-7.

[3] ^”Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

[4] Wydra, Elizabeth, “The Fourteenth Amendment’s Guarantee of Birthright Citizenship” (The Constitutional Accountability Center 2009).

^[5] Elizabeth B. Wydra, “Debunking Modern Arguments Against Birthright Citizenship,” available at http://www.immigrationpolicy.org/perspectives/made-america-myths-about-birth-citizenship. It is highly unlikely that many people would come to the United States for this reason since under current immigration laws a U.S. citizen cannot apply for a visa for a parent or sibling until they are at least 21 years old, and even then there are restrictions, priorities, and annual quotas for various family relations resulting in an additional wait for a visa estimated at 5 to 20 years. Moreover, requests for suspension of deportation on this basis will likely be denied.  See, Rios-Pineda at n.7 See Regulations explained at: http://travel.state.gov/viswimmigrantsitypes/types_1306.html (last visited 1/30/2011).

[6] The United States Supreme Court has held that an individual who is legally required to obey U.S. laws is “subject to the jurisdiction” of the U.S. and that, consequently, U.S.-born children of immigrants are entitled to Fourteenth Amendment birthright citizenship. U.S. v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (the phrase excludes only children of foreign sovereigns or their ministers, those born on foreign public ships, those born to enemies during a hostile occupation of our territory, and those subject to the jurisdiction of a sovereign Indian tribe). The Court has interpreted the equal protection clause in Section 1 of the Fourteenth Amendment to apply to both authorized and undocumented aliens as both are “within the jurisdiction” and laws of the United States. Phyler v. Doe, 457 U.S. 202 (1982). In 1985, a unanimous Supreme Court held that children born in the United States to unauthorized immigrants are U.S. citizens. INS v. Rios-Pineda, 471 U.S. 444, 445-46 (affirming denial of suspension of deportation for alleged hardship to citizen-child).

[7] Migration Policy Institute, “The Demographic Effects of Repealing Birthright Citizenship (September 2010) at 8.

[8] “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”