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Citizenship, Immigration and the Constitution
The 14th Amendment’s Citizenship Clause is one of the Constitution’s most important and underappreciated provisions. The clause grants full United States citizenship to anyone born on American soil (with a narrow exception for children of foreign diplomats) or naturalized by the federal government. With text and history on our side, CAC defends the rights of new Americans and immigrants to this country in Congress, courts, and the media.
Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means. This might not sound revolutionary, but it is. This Report explains how we have arrived at this point, why it is significant, and what work remains to be done.
In December 2008, CAC released the first narrative in its Text and History Narrative Series. This narrative tells the sad story of the Privileges or Immunities Clause of the Fourteenth Amendment, which was supposed to be the centerpiece of the Fourteenth Amendment and the critical constitutional language that guarantees the fundamental rights of all Americans. Instead, the Supreme Court wrote it out of the Constitution in 1873 and it has lain dormant ever since. The report argues for a reconsideration of the Clause and its critical role of protecting fundamental rights and liberties.
On September 29, 2011, CAC released "CAC Supreme Court Preview: Tests of Government Power in the Supreme Court’s 2011 Term—With Even Bigger Cases on the Horizon." In this issue brief, CAC previews cases that challenge the federal government’s constitutional authority to act to protect against sex discrimination in the workplace, Coleman v. Maryland Court of Appeals, and to conduct surveillance using modern technology, United States v. Jones, as well as the states’ ability to take regulatory action that purportedly conflicts with federal law, for example, Douglas v. Independent Living Center. We note that the likely blockbusters of the Term are cases challenging the constitutionality of President Obama’s health care reform law, defending Arizona’s controversial immigration law, attacking affirmative action policies, and asserting the rights of same-sex adoptive parents. By June 2012, this term may prove to be among the most momentous terms in recent decades.
On March 31, 2011, CAC's Chief Counsel Elizabeth Wydra released an Issue Brief distributed by the American Constitution Society on the Citizenship Clause’s guarantee of constitutional citizenship, rebutting attacks on this critical component of the 14th Amendment. The issue brief explains that a close study of the text and history of the Citizenship Clause demonstrates that birthright citizenship is guaranteed to every person born on U.S. soil and subject to its jurisdiction, regardless of the immigration status of the child's parents.