Birthright Citizenship:

Should We Revisit the 14th Amendment?

Pat Bryson Govt 379 Policy Analysis Spring 2008

Introduction
The current debate on illegal immigration has been going on in congress for over a decade. Among the various issues that are being discussed is the issue of birthright citizenship. This is the current policy wherein a child is conferred United States citizenship because he/she is born with in the borders of the United States. This policy does not take into consideration the status of the parents as long as they are not in the diplomatic service of another country. Due to the tradition of inclusiveness that this country was built on, there are many who feel that this policy should not be changed (Cummins, 1998). There are also many others who see this policy as a draw for illegal immigration second only to the promise of jobs (Beilenson, 1996). This policy analysis will present the historical background and analyze the problem as it applies to the illegal immigration situation and the effect it is having on American Society today.

Background
Problem Definition and Analysis The problem that this policy analysis paper addresses is the increasing illegal immigrant population and the effect that the birthright citizenship may have on that situation. According to the Pew Hispanic Center, based on 2004 estimates, 10.3 million undocumented aliens were in the United States compared with 3.5 million 15 years earlier (Katel, Marshall, and Greenblatt, 2007). Over 75% of those are from Latin American countries with more than 50% coming from Mexico alone (Passel, 2005).
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As mentioned in the introduction, Representative Beilenson (D CA) feels that the prospect of gaining citizenship is a major draw for illegal immigrants. A survey conducted by the University of California found that 15% of new Hispanic mothers in the hospitals along Californias borders crossed the border specifically to give birth. Illegal immigrant mothers account for 2/3 of the births in Los Angeles County hospitals. This draw is most probably due to the fact that at birth these children are eligible for many benefits that their parents are not eligible for. Based on data collected in California for Aid to Families with Dependent Childrens (AFDC) children only cases, the California department of Social Services estimated that in fiscal 1994-1995, 193,800 children of illegal immigrants received welfare at a total cost of $553 million. (Beilenson, 1996, pg. 8). A study by the Center for Immigration studies found that (based on 2002 figures) that illegal immigrant households cost the federal government more than $26.3 billion in services but only paid $16 billion in taxes. The services that cost the most were Medicaid; treatment for the uninsured; food assistance programs; the judicial system; and federal aid to schools. Most of these costs were due to the American-born children because of their citizenship rights (CIS, 2004). Besides the draw of benefits that would be payable to a citizen child, there is the concept of an anchor baby. When a child is born within the United States and automatically a citizen of the United States, at the age of 21, he/she can sponsor relatives to the United States under the family reunification provisions of the Immigration and Nationality Act (Adams, 1994). Once these members of the childs family arrive, the cost of services that they and their newly arrived family members utilize may
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increase as those family members become naturalized citizens, and grow older and are unable to work. The policy problem that I postulate is that the costs of the benefits that the citizen children of illegal immigrants are eligible for (food assistance, education, medical care) far outstrip the taxes that their illegal parents pay. I will show that a revisiting of the definition of the term citizen used in the 14th Amendment, would go a long way to alleviating those costs. The next section outlines the historical background of the current debate. Historical Background In 1857, the Supreme Court heard the case of Dred Scott v. Sandford and invalidated the Missouri compromise which excluded slavery from some territories. At the same time, the Court ruled that individuals of African descent were excluded from citizenship (Wu, 1996). After the Civil War, the Fourteenth Amendment was ratified (1868). It has five sections: Section 1 defines American citizenship as related to State citizenship; Section 2 addresses the appropriation of the representatives for each state; Section 3 outlines the acceptable character of those who hold office in State or Federal Government;

Section 4 outlines the validity of the Government debt, and Section 5 gives congress the power to enforce the provisions of the article.

Among the various purposes of the Amendment was to guarantee the citizenship of recently freed native-born slaves. Prior to the ratification of the 14th Amendment, black slaves were counted as three-fifths of a human being, and the courts upheld their status as property. (Stein, Dan, 1996) This guarantee was accomplished by the definition in Section 1 of the amendment: All persons born or nationalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforced any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Elbel, 2007) The first sentence, All persons bornin the United States and subject to the jurisdiction thereof, are citizens of the United States is the keystone in the current policy of birthright citizenship. The amendment was an attempt to give voice to the strong

National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right

and privilege belonging to a freeman, without fear of violence or molestation. (Justice Bradley, Slaughterhouse Cases 1873). This interpretation was upheld in the United States v. Wong Kim Ark (1895). In this case, a son of Chinese immigrants, Wong Kim Ark, who was born in San Francisco, was denied entry into the United States after he visited his parents in China at the age of 21, by the San Francisco Collector of Customs on the claim that Wong was not a citizen. His parents had been legal immigrants in the United States for 20 years. The Supreme Court ruled that US-born descendants of immigrants could not be denied citizenship, regardless of their ethnicity or the nationality of their ancestors. (United States v. Wong Kim Ark 1898, summary). In recent years, the phrase subject to the jurisdiction thereof has been the focus of the debate that has erupted regarding birthright citizenship policy. One point that has been put forth is that at the time that the 14 th Amendment was framed, immigration was unregulated, so there were no illegal immigrants, and wouldnt be for sometime afterward. Thus, the question of native-born children of illegal immigrants becoming citizens was not entertained during the framing of the Amendment. the framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship. While they were intending to extend citizenship to native-born blacks, they also intended to limit the scope of birthright citizenship through the clauses justification requirement (Shuck and Smith, 1996). According to Dr. John Eastman of Chapman University School of Law, the jurisdiction clause means owing allegiance, and is rendered redundant by the birth-is5

enough view. Historically, the language of the 1866 Civil Rights Act, which the 14th Amendment was intended to constitutionalize, makes very clear that all persons born in the United States and not subject to any foreign power are declared to be citizens of the United States. In the 1884 case of Elk v. Wilkins the Supreme Court held that a claimant was not subject to the jurisdiction of the United States at birth if he was merely subject in some respect or degree, but completely subject to the political jurisdiction and owing it direct and immediate allegiance. (Dual Citizenship, 2005) Until the 1924

Citizens Act, Native Americans were not considered citizens because their primary allegiance was to their tribes. This point is very important to the debate due to the fact that illegal immigrants are in the United States in violation of American law. The Supreme Court has consistently held that the status of the parents determined the citizenship of the child. The Wong Kim Ark decision was the only decision that didnt follow that mold due to a treaty that the United States had with the Emperor of China that disallowed Chinese citizens to repatriate their Chinese citizenship. As legal residents for 20 years, Wongs parents were not in violation of American law when he was born. In reaching their decision in the Wong Kim Ark case, the court wrestled with several issues. Due to the fact that there had been many people born in the United States who had assumed they were American citizens and had performed the responsibilities of citizens during the 30 years since the 14th Amendment was ratified, a decision against Wong would have been very disruptive. Also, the attorneys for the U.S. reminded the court that the parents of Wong were subjects of the Emperor of China. To navigate these obstacles, the court

used a definition of citizen based on English common law, and defined allegiance for the parents based on domicile resulting in the following conclusion: a child born in the United States, of parents of Chinese descent, who at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.(Buchanan, 1999, p. 3) If the status of the parents determine the status of the child, then children of illegal immigrants are not due birthright citizenship according to the above argument due to the fact that illegal immigrants would not be able to have a legal residence while being in the United States in violation of the law. The next policy change came in 1965 with the passage of the Immigration and Nationality Act. This law included provisions that allowed for citizens over the age of 21 to sponsor family members to come to the United States. Conceivably, this could mean that an illegal immigrant could come into the United States, give birth to a child, take that child back and raise him/her in the parents home country. When the child turns 21, he/she could come to the United States and apply to sponsor their parents to come into the United States legally as migrants, putting them ahead of other migrants waiting years to enter the country legally (Beilsenson, 1996). This is another possible draw for illegal immigrant mothers to come into the country specifically to give birth the benefits

that the child would be eligible for and the possibility of future legal residency for the parents. In the next section, I will offer policy alternatives and evaluate them.

Alternatives

The policy problem of birthright citizenship came about because the definition of those that would qualify for it was not reinterpreted in the current climate. At the time that the definition was first constructed, the illegal immigration situation was not a concern. Also, the ability to travel across borders with ease was not available. In an age of extreme mobility, ideas about national identity and citizenship must be reexamined. (Stein, 1996) This reexamination has occurred in other countries. The United Kingdom changed their law in 1981 to require one parent to be a legal resident (Elbel, 2007). Australia changed their law in 1986 to one parent being a citizen or a permanent resident. Prior to that Australia had birthright citizenship. I looked at 69 countries (Afghanistan to Guatemala including the United States) in the Citizenship Laws of the World, and only found 20 countries that still had birthright citizenship as of 2001 (CLW, 2001). If the reexamination of our birthright citizenship law determines that it should be

changed, Section 5 of the 14th Amendment allows for an act of Congress to make those changes (Elbel, 2007). The goals that we want to accomplish are to restrict the draw for illegal immigrants due to the rights of their children born in the United States. This in conjunction with an increased effort to enforce the employment sanctions that were enacted in 1986, could slow the illegal immigrant flow. Unfortunately, due to the uncertain estimates of the illegal immigration population, there are very few measures that we can use to assess the success of the alternatives without a period of time passing. Possibly we could use Department of Social Services payments that only apply to children. Constructing policy alternatives to the current birthright citizenship policy touches on both of the obstacles that the Supreme Court wrestled with in rendering their decision in the United States v. Wong Kim Ark case in 1898. The first obstacle is the number of citizens who have been granted birthright citizenship. A conservative estimate of the number of births to illegal immigrant parents in the United States is 353,000 each year (Elbel, 2007). All of these children are automatically granted citizenship upon their birth, and stripping that status from them would be extremely disruptive for their lives and their families. Understandably, there is a very emotional edge to this debate. There is a concern that changing the birthright citizenship law will create a second-class population. the implications of eliminating birthright citizenship extend beyond immigration itself to civil rights broadly conceived. Citizens whose status is vulnerable, not least because they are confused with foreigners, are protected by
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birthright citizenship. (Wu, 1996, pp.55-56). Any policy that is suggested will have to address the citizens that already exist, while blocking birthright citizenship for future generations born to illegal immigrants without leaving them vulnerable. The second obstacle is the illegal status of the parents. I think that the definition used by the court in the 1898 case would be applicable to the current time. As it stated, Wong was deemed to be a citizen by birthright due to his parents maintaining a legal residence at the time of his birth. In the current debate, the fact that illegal immigrants cannot maintain a legal residence due to their legal status, under the above definition, their children would not qualify for birthright citizenship. The first alternative that I wish to propose is to restrict birthright citizenship to the children of citizens and legal residents of the United States. If a child was born to illegal immigrants prior to the policy being enacted, they would retain their citizenship status. This may be the least controversial of the three that I would propose. The most difficult aspect would be to determine the status of the mother at the time of birth. The resources required to do that would lessen the effectiveness and efficiency. Allowing the recipients of birthright citizenship would be equitable, but what would be the status of those born after the date of enactment? The political feasibility might be good in the current debate because it shows the native population that the government is doing something about the problem. This alternative is the basis for the next two which add one more element to it to further control costs incurred through illegal immigration.

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The second alternative that I would propose would follow the first, but add that the birthright citizen would not be able to sponsor his/her parent for migration if that parent had been proven to have been in the United States illegally. This would add another layer of resources at the consul to check on the prior status of the person that the birthright citizen is sponsoring. The third alternative was proposed by Peter Schuck and Roger Smith. This is the idea that birthright citizenship only applies to children of citizens, and all other children would apply for citizenship after a required period of residency and reaching the age of maturity. This is the most problematic of the 3 alternatives due to the lack of status of the children until they have applied and received citizenship. Are these children to be considered another generation of illegal immigrants that just happen to be born in the United States?

Conclusion
As stated above, the concept of birthright citizenship, is based on an interpretation of the 14th Amendment that was defined in an age when there was no regulation of immigration. Although there were various changes to immigration law over the years, illegal immigration was not a major concern until almost 100 years after the

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ratification of the 14th Amendment, and the initial definition has remained. The time has come to look at the definition of those who qualify for birthright citizenship. This is a very emotional debate in that there are those who feel that the US born children of illegal immigrants will be stateless and unprotected. There are also those that feel that the promise of birthright citizenship is an additional draw to illegal immigrants. This makes it very difficult to determine the political feasibility or the social feasibility. The alternative that I think would work the best is the third that was proposed by Peter Schuck and Roger Smith. The residency requirement and the waiting until the age of maturity, imply that the new citizen has a commitment to becoming a citizen of the United States. I would also add the restriction that anyone that the new citizen sponsors for migration to the United States that could be proved to have been an illegal immigrant in the past is not allowed a visa. I know that this alternative would be very difficult to pass, but I think that this is the best one to achieve the goal of making giving birth in the United States less of a draw. As I mentioned earlier, in conjunction with enforcement of the sanctions of employers that knowingly hire illegal immigrants, more restrictive birthright citizenship laws could possibly help stem the flow of illegal immigrants.

References
Adams, Sarah A., (1994), The Basic Right of Citizenship: A Comparative Study. The Social Contract, Summer 1994, pp.261 264.

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Beilenson, Anthony C., (1996), Anchor Babies: Case for Correction By Congressional Amendment. The Social Contract, Fall 1996, pp.7 9.

Bradley, Justice (dissenting), (1873), Slaughterhouse Cases, http://lectlaw.com/files/case30.htm.

Buchanan, William, (1999), HR-73 Protecting Americas Sovereignty; Birthright citizenship a limited right. The Social Contract, Fall 1999, pp.1 4.

Center for Immigration Studies (CIS), (2004), The High Cost of Cheap Labor: Illegal Immigration and the Federal Budget, Executive Summary, available at: http://www.cis.org/articles/2004/fiscalexec.html

Citizenship Laws of the World (CLW), (2001), United States Office of Personnel Management, Investigation Service, March 2001.

Cummins, Bishop John S., (May 1, 1998), From Alien to American: Acceptance Through Citizenship, www.nccbus.org.

DUAL CITIZENSHIP, BIRTHRIGHT CITIZENSHIP, AND THE MEANING OF SOVEREIGNTY: Hearing before the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary House of Representatives 109th Congress 1, (2005). Testimony of Dr. John Eastman.

Elbel, Fred, (2007), www.14thamendment.us, Updated October, 2007.

Katel, Peter, Marshall, Patrick, and Greenblatt, Alan, (2007), Illegal Immigration. In Issues For Debate in American Public Policy, (pp. 339 365). Washington, D.C.: CQ Press.

Passel, Jeffery S., (2005), Unauthorized Migrants: Numbers and Characteristics. Pew Hispanic Center, June, 14, 2005, available at: http://pewhispanic.org/files/reports/46.pdf
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Schuck, Peter and Smith, Rogers, (1996), Citizenship Without Consent. The Social Contract, Fall 1996, (pp. 19 25)

Stein, Dan, (1996), Born in the USA but not American. Christian Science Monitor; Vol.88 Issue 232, p19.

United States v. Wong Kim Ark, 169 U.S. 649 (1898), available at: http://www.oyez.org/cases/185-1900/1896/1896_132/

Wu, Frank H., (1996), Repealing Birthright Citizenship Would Be Unfair. From Birthright Citizenship is Equal Citizenship, unpublished paper. In Illegal Immigration Opposing Viewpoints, Opposing Viewpoint Series,(pp. 51 59). San Diego, CA: Greenhaven Press, 1997.

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