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Debate: Birthright citizenship for children of illegal immigrants

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Background and context

Since the adoption of the Fourteenth Amendment to the US Constitution on July 9th, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which 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."
This has been interpreted to give "birthright citizenship" to anyone born in the United States, except for the children of diplomats and Native Americans. The core issue and area of dispute surrounding the 14th amendment has been the widespread birth of children to illegal immigrants in the United States as well as the, albeit much more rare, "birth tourism" in which a foreign citizen travels for a short period to the United States in order to give birth to their child and make them an American citizen. All of this has led to widespread debate, and calls within Republican circles to either amend the 14th amendment or reinterpret it to end "birthright citizenship" so that no illegal immigrants or foreign visitors can give birth to a child and confer to them automatic citizenship. In 2010, with many other immigration issues at hand including Arizona's immigration law and the broader topic of "comprehensive immigration reform", this debate became particularly heated, attracting editorials and op-eds from around the country. The main arguments and quotations from these resources are presented below.

Contents

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Constitutionality: Does US Constitution provide for birthright citizenship?

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Pro


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Con

  • Birthright citizenship lacks critical government consent "George F. Will: Citizenship a birthright?" The Commercial Appeal. March 28th, 2010: "in 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent." Graglia says this decision "seemed to establish" that U.S. citizenship is "a consensual relation, requiring the consent of the United States." So: "This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal."



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American tradition: Is birthright citizenship consistent with US traditions?

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Pro

  • Birthright part of American tradition of inclusiveness and assimilation "Go back where you didn't come from." Economist.com. Aug 12th 2010: "Americans tend to boast too often about aspects of American society that aren't really exceptional or admirable, but the American model of immigrant assimilation is truly something to boast of. Few countries in the world assimilate immigrants as well as we do. (Canada and Australia come to mind.) There's no reason to tamper with a machine that works. We need to address the problem of undocumented aliens in this country by offering a pathway to legal residency, by reducing economic disparities with our southern neighbours, and by doing more to control our southern border. But denying citizenship to children born in the United States shouldn't be part of that solution, especially not when there are so darn many of them."


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Con

  • Birthright citizenship for illegals is bad loophole Ira Mehlman of the Federation of American Immigration Reform, which backs Deal’s proposal: "Most Americans feel it doesn’t make any sense for people to come into the country illegally, give birth and have a new U.S. citizen."[2]
Such a loophole is contrary to the great importance of the US rule of law and to the sense of fairness Americans and other legal immigrants should feel surrounding US laws.
  • Birthright citizenship is offensive to legitimate immigrants. When a person desperately wants to come to America, and must wait in line, or who was born in another country a week or a month before moving to America, it seems offensive that they are less deserving of citizenship than the child of someone who came illegally.
  • Citizenship is something that should be earned. Citizenship is about much more than where you were born. It is about your willingness to contribute, engage in a society, perhaps learn the prominent language of that society, and more. The idea that citizenship can be acquired by the mere fact of being born in the United States seems to cheapen this social compact.
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Incentives: Does birthright incentivize good or bad immigration behavior?

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Pro

  • Illegals have incentive to have babies w/o birthright citizenship "Go back where you didn't come from." Economist.com. Aug 12th 2010: "Denying American citizenship to the American-born children of illegal immigrants may have a slight dissuasive effect [...] on births to illegal immigrants already in the United States, but that effect, too, will be slight compared to the overwhelming incentive for having babies, which is pretty much hard-wired into our systems, for good or ill. I'd be surprised if revoking birthright citizenship led the number of babies born to illegal immigrants in the United States to fall from 8% to 7% of total births. That leaves you with a whole lot of American-born non-citizens."
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Con

  • Birthright citizenship creates incentive for birthright tourism Lindsay Graham: "They come here to drop a child. It's called drop and leave. To have a child in America, they cross the border, they go to the emergency room, have a child, and that child is automatically an American citizen. That shouldn't be the case. That attracts people here for all the wrong reasons."[3]


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Morality to children: Is birthright citizenship moral to children of illegals?

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Pro

  • Ending birthright citizenship would make millions of children nation-less If a child is born in the United States and then goes back to another country, it may be one thing. But, the vast majority are born in the United States and remain, in effect relinquishing their relationship with - and any prospect for citizenship with - the nation of their parents. Their only national affiliation on earth is to the soil upon which they were born: the United States. Denying them this claim would make them into citizenshipless nomads.


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Con

  • Illegal behavior of parents should not be rewarded. While it is true that denying the child of an illegal immigrant birthright citizenship is harmful to the child, it is also true that giving them birthright citizenship rewards a mother for having willfully broken US law. Such a reward is unjust and unfair, and undermines the US rule of law. So, this is not about punishing children, it is about not rewarding illegal behavior.
  • Illegal immigrant parents are to blame for having children abroad. Illegal immigrant parents, not the United States government, are to blame for bringing immigrating illegally and deciding to give birth to a child in the United States. The consequences to their children are a result of their folly, not of the government for deciding to end birthright citizenship.
  • Ending birthright citizenship withdraws something child never deserved. While withdrawing birthright citizenship may harm children, it is important to understand that the children of illegals never had a legitimate claim to citizenship and, thus, to avoiding these harms.
  • The state is not responsible for foreign children. The state is not responsible for the children of foreign citizens living abroad. Why should it be responsible for the children of illegal aliens (also foreign citizens) residing in the United States? The state has no moral obligation to these individuals, and particularly not to provide them with citizenship.
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Amend/reinterpret? Does 14th need amending or reinterpretation to end birthright?

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Pro

  • Birthright citizenship can be conditioned on "genuine connection" to US Peter Schuck. "Birthright of a nation." New York Times. August 13, 2010: "Fortunately, these strongly competing values [in the debate over birthright citizenship], combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society. This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country. Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools; such children could apply for citizenship at, say, age 10. The children would become citizens retroactively, regardless of their parents’ status. Other aspects of the larger immigration debate would continue, of course. But such a principled yet pragmatic solution to the birthright citizenship question could point the way toward common ground on immigration reform."


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Con

  • 14th amendment need not be amended, just reinterpreted "George F. Will: Citizenship a birthright?" The Commercial Appeal. March 28th, 2010: "To end the practice of "birthright citizenship," all that is required is to correct the misinterpretation of that amendment's first sentence: '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.' From these words has flowed the practice of conferring citizenship on children born here to illegal immigrants. [...] The Civil Rights Act of 1866 begins with language from which the 14th Amendment's Citizenship Clause is derived: 'All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.' (Emphasis added.) The explicit exclusion of Indians from birthright citizenship was not repeated in the 14th Amendment because it was considered unnecessary. Although Indians were at least partially subject to U.S. jurisdiction, they owed allegiance to their tribes, not the United States. This reasoning -- divided allegiance -- applies equally to exclude the children of resident aliens, legal as well as illegal, from birthright citizenship. Indeed, today's regulations issued by the departments of Homeland Security and Justice stipulate."
Daniel Foster in the National Review that "What Kyl, Graham and others have tentatively embraced is an amendment that would clarify the first sentence of section 1 [of the 14th Amendment], [which states that '[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.] [...] there is a credible argument that 'subject to the jurisdiction thereof' already excludes individuals who are here illegally, meaning that one might be able to end birthright citizenship for the children of illegal aliens by statutory as opposed to constitutional action."[4]
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Problems: Is birthright a real problem? Will ending it cause problems?

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Pro

  • Birthright citizenship is too small of a problem to end it James Joyner at Outside the Beltway: "Too Small a Problem to Justify Tinkering with the Constitution. It's not as if the birthright citizenship policy is the chief draw for illegal immigration in this country, or that we'd see any significant decrease in illegal border crossings if we changed the policy."[5]


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Con

"George F. Will: Citizenship a birthright?" Washington Post. March 28th, 2010: "Congress has heard testimony estimating that more than two-thirds of all births in Los Angeles public hospitals, and more than half of all births in that city, and nearly 10 percent of all births in the nation in recent years, have been to mothers who are here illegally."
  • Birthright citizenship exacerbates dilemmas around illegal immigration. Because illegal immigrants have the power to procreate in the United States and to bring new citizens into the union, they exacerbate the concerns of immigrants that feel they are being put at a disadvantage.


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Anti-immigrant sentiments: Does birthright citizenship lower or worsen these feelings?

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Pro

  • Ending birthright citizenship will not lower opposition to immigration "Go back where you didn't come from." Economist.com. Aug 12th 2010: "A while back Will Wilkinson proposed that denying citizenship to American-born children of illegal immigrants might reduce public opposition to a guest-worker programme and thus increase legal, temporary immigration and help integrate the North American labour market. I'm afraid I find that argument a bit of a libertarian hothouse flower. Like Timothy B. Lee, I doubt that denying birthright citizenship would do anything to lessen opposition to legal temporary immigration from Mexico; rather, I think it would chiefly serve to deny citizenship to a lot of kids."
  • Republicans want to end birthright citz. to tap anti-immigrant vote Alvaro Huerta of the Coalition for Humane Immigrant Rights of Los Angeles said his organization opposes Deal’s proposal and is girding for a battle for public opinion: "This is red meat for conservatives. They throw out these issues they know aren’t winning issues, and they create an environment of anti-immigrant sentiment. We need to do better job of educating people why it’s wrong."[6]
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Con

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Internationally: What are the policies internationally? How does it matter?

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Pro

  • America should be proud of its openness and birthright citizenship. "We should be proud that we're nearly alone in the advanced world in being so welcoming toward immigrants and the contributions of immigrant culture. We should not, as proponents suggest, look enviously upon other nations that have pulled up the drawbridge and doubt our long-standing commitment to strength through assimilation."


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Politics: Is supporting birthright citizenship good politics?

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Pro

  • Ending birthright citizenship distracts from real immigration reform "A futile effort to strip birthright citizenship." The Denver Post Editorial. August 13th, 2010: "We've argued for a serious-minded debate that leads to the vastly difficult job of securing the border, sanctioning employers who hire illegals and creating just and workable remedies for the 11 million illegal immigrants already here. Given that those goals have evaded our national representatives and led to the dispute between the Obama administration and the state of Arizona, we would hope Congress would refocus its efforts. Many other states are lining up to follow Arizona's lead, so it would seem the pressure already exists to spur Congress to action. Should such action emerge, we can't see how also taking on the 14th Amendment could possibly be a productive use of lawmakers' time."


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Con

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Public opinion:

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Con

  • A majority of Americans seem to oppose birthright citizenship. Rasmussen took a poll in June of 2010, asking people if they thought children of illegal immigrants should have citizenship. Fifty-eight percent said no and only 33 percent said yes.[7]


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Pro/con sources

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