Time to End Birthright Citizenship?

By James Carafano

Washington has apparently rediscovered a legitimate part of the immigration debate, one often treated as the untouchable third rail of the issue—birthright citizenship for children of illegal aliens and foreign visitors.

Currently, the United States seems to grant citizenship to all children born to parents who are unlawfully in the United States—a practice followed by virtually no other modern nation. The practice raises a problem in principle because it runs against our deep respect for, and valuation of, citizenship.

Birthright citizenship for children of illegal aliens and foreign visitors is integral to the immigration policy debate because of what is often called the “anchor-baby” problem. Many feel it is inhumane to deport violators of immigration laws with minor children who are legally American citizens. Estimates of the number of people illegally in the U.S. with children born in the United States vary greatly, but most estimates suggest at least several million—far too many to deport even if the federal government began meticulously enforcing its immigration laws.

Since the United States tried offering a general amnesty in 1986, the size of the unlawful population has steadily grown and while it has dipped in recent years, it still is over three times what it after the 1986 amnesty. Yet, an even more telling fact comes from a recent survey of patients from a Dallas-era hospital, which indicated “70 percent of the women who gave birth at Parkland hospital in the first three months of 2006 were illegal immigrants. These Hispanic women had been having their babies at Parkland without much attention until the recent debate over illegal immigration.”

We don’t envision or advocate taking citizenship away from anyone. Yet it makes sense in principle and in policy to remove this incentive for individuals who, in the future, wish to come to and unlawfully work and reside in the United States. Recently, Sens. Mitch McConnell (R–KY) and Lindsey Graham (R–SC) have suggested doing just that by starting a Constitutional process to modify the 14th Amendment (adopted in 1868), which has been incorrectly interpreted by many to justify the claim of birthright citizenship to children of parents who are illegally inside the United States or are temporary visitors.  The Fourteenth Amendment grants citizenship to all those “born or naturalized in the United States, and subject to the jurisdiction thereof,” which everyone agrees excludes the children of diplomats and an 1884 Supreme Court case said excluded many others who did not owe their primary allegiance to the United States.

According to one press report, Sen. Russ Feingold (D-WI), who chairs the subcommittee with jurisdiction over the issue, said in a statement yesterday that he has no plans to consider a constitutional amendment. “We can and should address the problem of illegal immigration head-on without amending the Constitution[.]”

Feingold is right, but he is wrong to suggest that clarifying birthright citizenship to exclude children of illegal aliens and foreign visitors can’t be part of that legislative agenda. There is a sound legal argument to be made that the 14th Amendment was widely misinterpreted in an 1898 decision (the same era as Plessy) and that Congress can legislate on this issue without further amending the Constitution. In fact, Heritage first made that argument in 2005 in The Heritage Guide to the Constitution. As we have previously argued, clarifying the citizenship issue is a necessary element of immigration reform. Going forward, resolving this issue should be part of a responsible sequence of reforms and a real honest strategy to fix America’s flawed immigration system and broken borders.

America is a sovereign nation. And deciding who comprises the commonwealth is one of the most fundamental components of sovereignty. Abdicating the right to decide issues of citizenship is not a mark of America’s generosity—it is an abdication of the basic responsibilities of sovereignty.