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Editorial: Keep birthright citizenship for children of illegal immigrants

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By Brooks Lindsay, Founder and Editor of - August 17th, 2010.

There are pros and cons surrounding "birthright citizenship" for the children of illegal immigrants, but the arguments in favor of keeping it in the United States are overwhelming.

Constitutionally, birthright citizenship is powerfully supported. The 14th Amendment, written in July of 1868, reads in its "citizenship clause": "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." Critics say that illegal immigrants and visitors don't fall under the italicized "jurisdiction clause" within the above text. But, under what logic? Illegal immigrants and visitors certainly do fall under US jurisdiction and laws while they are in the country (they do not have immunity privileges!) so the 14th amendment must be read to apply fully to them, conferring on them "birthright citizenship."

Critics also argue that Native Americans are exempt from birthright citizenship in the 14th amendment, so why shouldn't the children of illegal immigrants also be exempt? But, Native Americans were exempted because they had sovereign land of their own that they were meant to be born in to. Not exempting them would have infringed on their new, sovereign independence from the United States. Children of illegal immigrants permanently residing in the United States, however, have no national home but the United States and have no competing allegiances; they want to be Americans!

Some, including George Will, say that birthright citizenship lacks government consent to an infant's new-found citizenship. But, the consent is provided in the Constitution's 14th Amendment. What higher level of consent could be given?

Birthright citizenship was also not innovated in the 14th Amendment; it dates back to common law under the legal doctrine of jus soli, or citizenship by place of birth. These legal doctrines are powerful even today; it does not matter that the 14th amendment was written at a different time and place as some complain.

Finally, the Supreme Court ruled in 1898 and 1982 that the 14th amendment should be read inclusively to confer birthright citizenship to the children of illegal immigrants.

With all these things in mind, the case that the 14th amendment gives birthright citizenship to the children of illegal immigrants would appear watertight. It is not possible, as a result, to just "reinterpret" the 14th Amendment to end birthright citizenship, as many opponents wish. Instead, ending it would require amending the 14th. But, this requires an impossible 2/3 congressional vote and 3/4 states support.

It's fair to say that reinterpreting the 14th amendment and amending it are both out of the question. And so while the Republican-driven push to end birthright citizenship is just a waste of time, a political ploy to tap into anti-immigrant fervor during the 2010 election cycle, or a good way to distract attention from real immigration reform, perhaps there are some arguments that, in principle, could make it a just and good idea. There are some, but they are overwhelmed by the arguments in favor of keeping birthright citizenship.

As mentioned above, long-standing common law doctrines support birthright citizenship. Jus soli, or citizenship by place of birth, has a kind of divine and appealing simplicity: wherever you are born into the world is where you belong. This centuries old legal doctrine has a kind of warm-hearted inclusiveness to it that fits well with America's historically welcoming hand. America is not defined by xenophobia (fear of foreigners). Ending birthright citizenship, though, would symbolize that it is moving in that direction.

It would also worsen things. It would mean that a generation of a couple million young individuals would become second-class non-citizens living permanently in what they want to call "their own country." And, as has been seen in Japan and other countries without birthright citizenship, this results in individuals that feel less stake in society, less allegiance to their nation, and less importance in respecting its laws - all of which can contribute to unfortunate and disruptive behavior. Isn't it better to integrate them, and make them into good Americans? We can't get rid of them. It's choice between better or worse permanent residents. Framed in those terms, it's a pretty easy call.

Some contend, somewhat legitimately, that birthright citizenship incentivizes illegal immigration. There is probably a small incentive here. But, economic opportunities in America are the real incentive (which is not a bad thing, and immigrants only add to the momentum of the ship). Nevertheless, comprehensive immigration reform can and should dramatically reduce border crossings so that the "incentives" become less significant; it will be harder for immigrants to cross illegally even if the want to. And, if a path to citizenship is the ultimate goal (and this is the only real long-term solution to current illegal immigrant populations in the US), keeping birthright citizenship aligns much better than dumping it.

Ultimately, the pros and cons are pretty clear. Birthright citizenship is constitutionally mandated and cannot be amended away in this political environment (or any other). Ending it is a lost cause. And, even if we could, why would we? America needs to focus on making good American citizens out of its current permanent residents and on real immigration reform, not election-season posturing.

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