So the brave state of Arizona has decided to defy the federal government and all “right thinking” people and try to do something about the problem of illegal immigrants. Their first measure, empowering peace officers to verify the status of people they have in custody for other reasons, is so unpopular that it has the support of … 70% of all Arizonans, over 60% of all Americans, and over 50% of … Californians? A majority of those hippies in California?
Clearly the conventional wisdom of the chattering class is not all that it’s cracked up to be.
Unfortunately for Arizona — which has passed a perfectly defensible law — such success has given birth to delusions of grandeur.
State Senator Russell Pearce, who sponsored the wildly popular SB 1070, has his sights set on the “anchor baby” issue — the problems caused by the granting of automatic jus soli (birthright) citizenship to the American-born children of illegal immigrants.
Pearce correctly interprets the incentive structures set in the law as perverse. Giving birth to an American citizen child is tantamount to winning the jackpot for an illegal migrant. The citizen child is entitled to free medical care; free primary, secondary, and, depending on the state, post-secondary education; and once the child turns twenty-one, he can sponsor his parents for automatic Green Cards. The costs added to the system — drawn from the state treasury — are immense, and come at the expense of other Arizonans. How can you pay for, say, arts and music classes, when the costs of the overall system — including the additional costs of educating students with limited proficiency in English — overwhelm the budget already?
His belief that the Fourteenth Amendment can be interpreted not to require citizenship by birth for the American-born children of illegals is interesting, but not totally out of the mainstream. Yale professors Peter Schuck and Rogers Smith gave it book-length treatment in their 1985 book Citizens Without Consent , arguing that citizenship in a democratic polity requires the consent of one’s fellow citizens, and that this consent had not been given to the children of illegal aliens. It is not a particularly conservative argument — it is the liveliest of the “living tree” interpretations of constitutional provisions — but consistency of principle is not necessary in everyday politics.
Arizona Senator Russell Pearce suggests reforming birthright citizenship to the American-born children of illegal immigrants. Pearce is also the sponsor of SB 1070, Arizona's new illegal immigration law.
Finally, Pearce — and the 58% of American voters who agree with him, according to Scott Rasmusssen’s latest data — is not wrong in saying that it is a reasonable step to take. Countries grant their citizenship following two principles — jus soli, which grants citizenship by birth, and jus sanguinis, which grants citizenship by lineage. Countries with English common law systems generally follow jus soli, whereas countries with civil law systems (the rest) generally follow jus sanguinis. Jus soli countries also will have limited jus sanguinis provisions in their laws, to protect the children of their citizens living abroad. (This writer, for instance, is an American citizen by jus sanguinis provisions in US nationality law.) The recent trend in nationality laws has been to limit jus soli provisions, to require that foreign parents be legally present and settled for the long term for their children to be granted citizenship at birth — the UK did this in 1983, Australia in 1986, South Africa in 1995, Ireland in 2005, and New Zealand in 2006. Some countries have eliminated jus soli altogether — Malta did this in 1989, and India in 2004. Both were concerned by illegal immigration and switched to jus sanguinis nationality laws.
Favouring limiting jus soli provisions to the children of those legally present in the country is not an extreme view — looking at the rest of the developed world, it seems to be well on its way to being the international consensus.
But…
What determines US nationality laws is federal statute. More specifically, Title 8 of the United States Code, Chapter 12, subchapter 3, part I. The subsection about citizenship by birth does follow the 14th Amendment’s language, but the code also extends United States citizenship to a broader group of people, including American Indians (who are not fully “subject to the jurisdiction” of the United States), people born in the various outlying territories and commonwealths (which are not formally incorporated), and most people born abroad to one or two US citizen parents. Also, the federal government and its bureaucracy has long assumed that the principles upheld in US vs. Wong Kim Ark, a late 19th century Supreme Court case affirming the US citizenship of the American-born son of Chinese parents legally settled in the United States, apply also to the children of illegal immigrants. (For Wong Kim Ark, incidentally, the Constitution was his only protection — before 1952, only white men and women were allowed to become naturalized US citizens.)
Given that existing reality, there have been a few attempts recently to withdraw or limit birthright citizenship for the children of illegals over the last decade. Members of the Republican congressional majority introduced various bills to do so in the mid-1990s and even held hearings on it in December 1995. It did not get very far — it seemed to be generally felt that this new policy would require a constitutional amendment, and the support required for such an amendment (2/3 of the House and 2/3 of the Senate) simply was not there.
Pearce’s proposal, therefore, can be boiled down to this: that the state of Arizona should deny birth certificates to a class of persons — the US-born children of illegal immigrants — currently considered by the federal government to have acquired US citizenship at birth.
The proposed bill, if passed, would invite litigation almost immediately. It would force the courts to deal directly with the issue of birthright citizenship for the children of illegal aliens, and it almost certainly would end with an explicit ruling that those children are, in fact, US citizens by birth.
In the meantime, it would result in much inconvenience for these US citizen children — birth certificates are a requirement for almost every piece of identification required to live one’s life. It would enable the opponents of the new laws to paint those who do favour the reforms as racists and nativists. The backlash would be substantial. It is also unprecedented — none of the countries which have moved away from jus soli deny birth certificates to children who do not acquire their citizenship at birth.
If state Senator Pearce wishes to force a case on the Fourteenth Amendment’s citizenship clause before the Supreme Court, he has picked the right instrument.
If, on the other hand, he wishes to actually change nationality laws or the Constitution, he has picked the wrong city, and the wrong venue; he needs to head to Washington.
Ben Sharma is a Canadian/American dual citizen. He was raised in Toronto, educated Stateside at Princeton (AB, Slavic Languages and Literatures, 2003) and Harvard (MA, Russian Studies, 2007). Sharma voted for Nader as a college sophomore in 2000 and edited the campus lefty rag. But he voted for Bush in 2004 and says he never looked back. Sharma describes himself as staunch libertarian who votes Republican south of the border and Tory north of the border. 
Great article Ben, I agree with just about everything you say here. Ive long thought the idea of ending birthright citizenship was unconstitutional (particularly when I discovered Wong Kim Ark), but you’re practical case against this particular action is persuasive.
I’d be tempted to do something else — end the practice of allowing anchor babies to sponsor their parents once they hit 21, and make it explicit policy (might have to be legislated) that the existence of “citizen children” cannot be used as an argument for a stay of deportation — almost all the citizen children have their parents’ countries’ citizenship as well, and so there is be no additional hardship over and above that of the typical deportation.
All of that, though, also has to be done in Washington. Can’t be done at the state level.
Illegal immigration costs the U.S. close to half-a-TRILLION per year. Pregnant Mexican women, in labor and straight from Mexico, present themselves at border state ER’s to have their babies at a rate of over 400,000 per year. They know all too well that this grants them instant U.S. welfare benefits and entitlements including housing, child allowances, food stamps, medical coverage and translator services, to name just a few. This outrageous ABUSE of the 14th Amendment has to stop. The parents are not US citizens, not subject to US jurisdiction, owe NO allegiance to the US and are not entitled to refugee or political asylum status. They are free-loaders jumping the line (queue) ahead of legitimate immigrants who have waited patiently for years to come to the US… legally. Stop the fraud, close the loophole. Period.
Just because you want the law to be something, that doesn’t make it so.
It’s extraordinarily unlikely that the courts would reverse centuries of jurisprudence about whom the old common law rule about birthright citizenship covers. Everyone is subject to American jurisdiction except diplomats, enemy aliens accompanying an invading army, and treaty Indians.
There’s a pretty strong case for the law to be changed, but it’s almost certainly going to take a constitutional amendment.
Hi Angel
Three things.
First, regarding the supposed cost of 500 billion: http://www.factcheck.org/2009/04/cost-of-illegal-immigrants/
Second point, read the Plyler v Doe decision (http://scholar.google.com/scholar_case?case=12010798883027065807&hl=en&as_sdt=2&as_vis=1&oi=scholarr).
From Plyler v. Doe:
“To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection .
Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase “within its jurisdiction” was intended in a broad sense to offer the guarantee of equal protection to all within a State’s boundaries, and to all upon whom the State would impose the obligations of its laws.”
Last point, actually more of a good read: http://www.cato.org/pub_display.php?pub_id=11820
Birthright citizenship is based on an interpretation of the Fourteenth Amendment to the U.S. Constitution, which was originally enacted to ensure civil rights for the newly freed slaves after the Civil War. Section 1 of the Fourteenth Amendment states, “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.”
A serious and scholarly debate has been on-going for years about whether illegal aliens (and temporary visitors) are, in fact, “subject to the jurisdiction” of the United States.
I’m assuming Sen. Pearce will mirror an AZ law after the one that Rep. Deal has reintroduced in Congress.
Rep. Nathan Deal (R-GA) reintroduced his Birthright Citizenship bill that would eliminate automatic citizenship for children born in the United States. The Birthright Citizenship Act of 2009 (H.R.1868) would amend the Immigration and Nationality Act to make it more difficult for children born in the U.S. to gain citizenship.
Under the proposed legislation, a person born in the United States, in order to gain citizenship, must have at least one parent who is:
* a U.S. citizen or national;
* a lawful permanent resident alien whose residence is in the United States; or
* an alien performing active service in the U.S. Armed Forces.
Rep. Deal’s bill has 40 original cosponsors. (and 92 sponsors – info updated 4/22/10.
http://www.numbersusa.com/content/news/may-18-2009/rep-nathan-deal-reintroduces-bill-end-birthright-citizenship.htm
Deal’s been introducing that bill in each new Congress for quite some time.
And that whole effort — even if the GOP re-took the House and the Senate, and the bill did manage to overcome a Democratic filibuster and a veto by Obama — would be struck down by the courts almost immediately. The interpretation of the common law rule about citizenship by birth has been constant for centuries, throughout the British Empire and its successor states — that’s why these other countries have had to pass new laws modifying it, rather than relying on regulatory changes by government agencies.
Because the old rule has been constitutionalized in the United States, it’s going to take a constitutional amendment to change it.
http://www.justice.gov/olc/deny.tes.31.htm
***
This situation is interesting — it ends with open-borders liberals arguing original intent, and conservatives trying to push a living tree “well, we don’t like how it works _now_!” argument to reinterpret the constitution according to present-day needs.
Me, I’m an originalist. The old rule stands until we amend it.
Ya know, while I’m not real crazy and do not think it totally fair for the children to become citizens automatically if their parents are illegal, just because they are born here in the US, I don’t think this can be done. If reading the Constitution correctly, to deny the children would possibly be against the Constitution. It is not right for the Illegals to come here specifically to have their children so they don’t have to pay hospitalization and we the taxpayers end up paying for the child to be born, this is true; but, if we actually enforce the Immigration laws across the Country in all states, Federally, and Locally within each State, then we shouldn’t have a problem. Read an article that a friend of mine posted on FB about Pres Truman, Pres Hoover and President Eisenhower. They passed national bills. They Deported over 1 million illegals and over a course of a couple I believe the one figure was over 13million illegals were Deported and I think that may have been under Eisenhower. So, if 3 presidents as far back as Hoover/Truman/Eisenhower were able to deport ALL of the illegals at that time, what seems to be our problem. We should be able to do the same and forget about Amnesty which is what got us all in this hot tub of water in the first place and I hate to say it, this being done under President Reagan’s administration. That was a HUGE mistake. We as Conservatives and Republicans, should know how to take a stand, and run with it. If it’s the right thing to do, it’s the right thing to do. No ifs, ands, or buts about it. Is Russell Pearce going a little to far?????? I personally think so, and I strongly believe in SB1070 a total of 500%!
Hi Ben,
Just a few thoughts.
Neither polls nor public opinion make a law right or legal. The public has been wrong in the past and they’ll be wrong in the future, regardless of what the chattering class thinks—by the way welcome to the chattering class.
I wouldn’t use the word “perverse” in regards to the 14th Amendment. What is “perverse” is why we needed it in the first place. In the Dreed Scott decision, the Supreme Court of the United States ruled that Scott was still a slave though he resided in a free state for a time, had no Constitutional rights (including the right to sue), and that neither he, any other slave, or their descendants could ever be citizens of the Unites States.
In short. The whole idea behind the 14th amendment, specifically Section 1, was to ensure that people born in the US were recognized as citizens.
I think we should avoid the insensate and hurtful words “anchor baby” and “jackpot baby” in public debate. I mean, seriously, where not talking about chattel, but about children who are ultimately innocent. As someone who appreciates and believes that life is precious, this is not only offense but hurtful. I can’t imagine why Sen. Russel Pearce would use such a term as a fellow Christian and member of the pro-life community.
Now, you cited the cost of providing children of illegal immigrants free medical treatment, free primary and secondary education, and even free post-secondary education (which you should know has never been free in Arizona, though the Arizona Constitution calls for it to be “as free a possible.”) You also mention the burden of educating children with a limited proficiency of English.
While I understand the argument and underlying frustration in providing these services, this rational doesn’t take into consideration the manner in which Arizona funds education, health care, and most other state programs, through sales, cigarette, and alcohol taxes. Obviously, these are all based on consumption, which doesn’t depend on legal status. Furthermore, the notion that children of illegal immigrants learn English at a slower rate is inaccurate as studies have shown the opposite to be true. (These was an interesting reads: http://www.foxbusiness.com/story/markets/economy/illegal-immigration-provides-benefits-states-despite-rhetoric/ )
But back to the 14th Amendment. You’re right Ben, the only way to change birthright citizenship is to amend the constitution. You guys mentioned Wong Kim Ark, I would suggest reading the Pryler v. Doe decision. It not only deals with educating actual non-citizen children, but also the primacy of the 14th Amendment and even the phrase “within its jurisdiction.” This case will be at the center of the storm next year, should Sen. Pearce pursue crafting laws dealing with the 14th amendment.
I leave you with this quote from Plyler v. Doe:
“To permit a State to employ the phrase ‘within its jurisdiction’ in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection .
Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase ‘within its jurisdiction’ was intended in a broad sense to offer the guarantee of equal protection to all within a State’s boundaries, and to all upon whom the State would impose the obligations of its laws “
Victor –
When the current laws provide people with a strong personal incentive to break the law, that is the very definition of a perverse incentive.
Re funding sources for the school system — I think it’s pretty clear that when people are working under the table, they are not the highest income earners. It’s extraordinarily unlikely that these families would be paying $5000 per year in consumption and sin taxes, which is the low estimate of what is spent per student in Arizona. They are therefore net recipients, and a net drain on the treasury.
As it happens, I actually oppose changing the old common law rule on citizenship by birth — the simple elegance of only needing a birth certificate to prove one’s status is not something that should be lightly given up — but the view on the matter held by 58% of the electorate is well within the international legal mainstream. Sticking with the traditional rules is actually the outlier here.
I have been, and remain, a member in good standing of the chattering class — I just dissent strongly from much of its conventional wisdom.