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Birthright Citizenship: Why Do Conservatives Want to Deny The Promise of the Constitution?
by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center. This piece is cross-posted at ACSblog.
It seems many conservatives have developed collective amnesia about portions of our Constitution and its history. The most recent example of this phenomenon is Virginia Governor Bob McDonnell's proclamation declaring April Confederate History Month, in which he didn't even mention (let alone condemn) the institution of slavery -- much less recognize that the Union victory swept in constitutional amendments that strengthened the federal government and promoted freedom and equality -- until a national outcry forced him to admit that the omission was a serious mistake. Then, of course, there are the Attorneys General suing to block the recently enacted health care reform law, who appear to have developed convenient memory loss about the part of the Constitution that grants the federal government broad authority to regulate interstate commerce and tax and spend to provide for the general welfare, as well as to make laws that are "necessary and proper" to carry out those powers.
Conservatives would also, apparently, like us to forget about the text and history of the Fourteenth Amendment's Citizenship Clause, which 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." In a recent column, George Will tried to convince his readers that "all persons" does not really mean all. Specifically, Will argues that children born in the United States to undocumented parents are not entitled to birthright citizenship under the Fourteenth Amendment.
Will is undeterred by the fact that the text of the Constitution, the history of the Fourteenth Amendment, and Supreme Court precedent all require the Citizenship Clause to be interpreted to grant citizenship at birth to children born in the United States to undocumented parents. This is probably because Will's argument relies on a recent article published by conservative law professor Lino Graglia, in which Graglia dismisses such constitutional arguments with the rather shocking characterization of the Constitution as "the last resort for defenders of untenable positions." Because progressives cherish the Constitution and, contrary to Graglia's view, see it as an invaluable bulwark against tyranny and inequality, it is important to review the constitutional case for birthright citizenship. (For a more detailed analysis and a thorough refutation of the claims made by Will, Graglia, and others, please see my ACS Issue Brief "Birthright Citizenship: A Constitutional Guarantee.")
Noting that immigration restrictions did not generally exist at the time the Fourteenth Amendment was ratified, Will asserts in his column that, "[i]f those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not." But Will is wrong; this is precisely what the Reconstruction Congress that drafted the Amendment understood birthright citizenship to entail, even in the face of arguments like those made by Will and Graglia.
Much of the 19th Century hostility toward immigrants, mostly Chinese and Roma or gypsies, was similar to the resentment and distrust leveled at illegal immigrants today: concern that immigrants would take away good jobs from U.S. citizens (while exhibiting a willingness to allow immigrants to take jobs perceived as undesirable); fear of waves of immigrants "invading" or overtaking existing American communities; and distrust of different cultures and languages. These fears were expressed by some members of the Reconstruction Congress -- noting that birthright citizenship might expand the numbers of immigrants who would come to America, even those who committed "trespass" within the United States -- but were not allowed to influence the requirements for citizenship.
Drafted and ratified against the backdrop of prejudice against newly freed slaves and various immigrant communities, the Fourteenth Amendment provides that citizenship is granted automatically to anyone, regardless of race or ancestry, born within the jurisdiction of the United States. Fixing the conditions of birthright citizenship in the Constitution, rather than leaving them up to constant revision or debate, befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day. The idea that the conditions of citizenship could be modified by the "consent" of Congress, as advocated by those, like Will and Graglia, who believe Congress may legislate away birthright citizenship for children born to undocumented immigrants, would have been anathema to the Reconstruction Framers.
Conservatives should not be allowed to claim that they take the Constitution seriously while at the same time discounting some of our charter's most meaningful provisions and twisting the document's meaning. It is important to push back against such constitutional misuse and mistreatment, so that the message is clear that the Constitution is not the "last resort for defenders of untenable positions" -- it is our best hope for preserving equality and the American Dream.