It’s Time to End Birthright Citizenship

Immigration has been a hot topic in the news as of late, thanks largely to the one and only Donald Trump. While the reality TV star turned presidential candidate is certainly not right about everything, his detailed immigration proposals are precisely what 21st century America needs: namely, an end to birthright citizenship in the United States.

The day was May 23, 1866 when Sen. Jacob Howard, Republican of Michigan, introduced the 14th Amendment on the floor of the United States Senate, beginning what would be a vigorous debate in the chamber over the second of three amendments to the United States Constitution passed in the years immediately following America’s Civil War.

Any commentary regarding this amendment will tell you what is obvious about the so-called “Civil War amendments”: they had to do with the Civil War. Take this from the U.S. Department of State regarding the 14th Amendment: “The principal purpose of this amendment was to make former slaves citizens of both the United States and the state in which they lived and to protect them from state-imposed discrimination.” Moreover, in the Supreme Court case Afroyim v. Rusk, which concerned immigrants and the 14th Amendment, even former Ku Klux Klan member Justice Hugo Black wrote in the majority opinion: “The chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes.”

American courts have since spit in the eye of the true intention of the 14th Amendment. In 1898, thirty years after the 14th Amendment was adopted, the Supreme Court decided that children born to legal immigrants were U.S. citizens, in a case known as United States v. Wong Kim Ark. This decision was wrong and was concocted with no constitutional basis in mind.

For one, the decision was based on English feudal law, which asserted that a child inherits his or her father’s citizenship regardless of birthplace (Britain repealed this law in 1983). Furthermore, in the opinion of the Chief Justice Melville Fuller and even the Yale Law Journal at the time, the case was decided without acknowledging the intent of the framers of the amendment.

According to the writer of the citizenship clause of the Fourteenth Amendment himself, Sen. Jacob Howard, “this [clause] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” This sentiment was codified in the specific language of the amendment that stated that new citizens of the United States must be”subject to the jurisdiction thereof,” which is the legal equivalent of “not subject to any foreign power.” The latter is phrasing found in the Civil Rights Act of 1866, which is the legislative backbone of the 14th Amendment passed just months prior to the amendment’s adoption.

Legal immigrants, particularly those from countries hostile to the United States, were hence deemed by Sen. Fuller and others to be unworthy of automatic citizenship, due to their potential loyalties to other nations. Birthright citizenship was never intended even for legal immigrants, and that should remain the case today.

Fast-forward to the Reagan era, and enter the single footnote which would change history. That’s right, in a footnote to a 5–4 decision in Plyler v. Doe, Supreme Court Justice William Brennan wrote, “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

What began as efforts to overturn Dred Scott and grant civil rights to former slaves has now turned into granting U.S. citizenship (the most coveted possession in the world) to people who run across the border illegally and violate our laws. If that is not a disgrace to the legacy of true civil rights’ victories in America, I frankly do not know what is.

The United States is the only developed nation in the world, other than Canada, to still maintain birthright citizenship. Short of a fundamentally different Supreme Court and fresh political climate in Washington, it seems Americans have no choice but to fight for a constitutional amendment to repeal the 14th Amendment, an amendment that was once needed but has since outlived its appropriateness.

Regardless of what one thinks about immigrants, legal or illegal, there must be an acknowledgment that the situation has gotten out of hand. Clearly, birthright citizenship has become a magnet for more waves of illegal immigration. The nonpartisan fact checker PolitiFact reported the following in 2010:

According to a report by the Pew Hispanic Center, a think tank that has done extensive research on immigration policy, 3.8 million undocumented immigrants have at least one child who is a citizen. ‘Most children of unauthorized immigrants — 73 percent in 2008 — are U.S. citizens by birth,’ the center says. That’s up from 63 percent in 2003. These statistics suggest not only that the number is large, but is also growing.

Furthermore, the problem extends to even legal immigrants. In 2013, Time reported on what is known as “birth tourism” and how foreigners flock to the United States to have children. Not only that, but through our immigration laws, these children can eventually sponsor their parents to become U.S. citizens. Again, despite what one feels about immigration, it is clear that America, or any nation for that matter, should have control over who becomes a citizen.

Overhauling our immigration and citizenship laws should concern members of both political parties. Take into consideration this quote from a prominent United States politician:

If making it easy to be an illegal alien isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering this country without permission, and give birth to a child, we reward that child with U.S. citizenship and guarantee full access to all public and social services this society provides — and that’s a lot of services. Is it any wonder that two-thirds of the babies born at taxpayer expense in county-run hospitals in Los Angeles are born to illegal alien mothers?

Was that a quote from immigration hardliner Donald Trump? Or maybe Michele Bachmann? Nope, it was from Sen. Harry Reid of Nevada in 1993, the senator who now leads the Democrats in the Senate.

Since he spoke those words, our immigration problems have gotten far worse. If disposing of birthright citizenship was not a radical, right-wing idea back then, I ask why is it perceived that way now? For heaven’s sake, the wife of the infamous Mexican drug lord El Chapo Guzmán, who recently escaped from a Mexican prison, is herself an American citizen thanks to birthright citizenship. What’s more, she also bestowed birthright citizenship on her (and El Chapo’s) children. In 2011, Emma Coronel left her husband in Mexico to give birth to twins in California, and then immediately returned home to El Chapo, the most wanted and powerful drug lord in the world.

So while some Republicans may want to mock Donald Trump, they may want to reconsider. Trump is currently dominating the 2016 race as the runaway favorite, and his immigration proposals are gaining popularity. According to a Stanford University study, a plurality of voters believe we should deport all illegal immigrants and build a wall on the southern border, and an overwhelming majority of Americans oppose automatic citizenship to children born here to illegal immigrants.

It is encouraging that other candidates, like Scott Walker, are starting to voice their agreement with the frontrunner and his ideas. However, if the others do not catch on soon enough to Americans’ distaste for immigration policies rigged against the legal working man, they frankly deserve to lose.

Michael Khan (COL ‘18) is a member of the Georgetown University College Republicans.