Editorial: Born in the USA - The flawed case against birthright citizenship.

Editorial: Born in the USA - The flawed case against birthright citizenship.
Copyright © 2010, Chicago Tribune
August 15, 2010
http://www.chicagotribune.com/news/opinion/editorials/ct-edit-birthright-20100815,0,2435353.story


For nearly a century and a half, the United States has had a simple rule: If you're born in America, you're an American. Birthright citizenship was taken for granted until recently. But the tide of illegal immigration has caused some conservatives to call for a re-examination of the rule.

They argue that many foreigners sneak in just to have kids, who gain the benefits of citizenship. Senate Minority Leader Mitch McConnell, R-Ky., has called for hearings on the issue. Sen. Lindsay Graham, R-S.C., has gone further: "We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen."

Some experts and members of Congress think there is an easier option: passing a law to challenge the established understanding of the Constitution.

Birthright citizenship is a product of the Fourteenth Amendment, passed after the Civil War, which says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."
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The central purpose was to cover freed slaves and other African-Americans, overriding the Supreme Court's 1857 Dred Scott decision barring them from citizenship. The opponents of birthright citizenship argue that the language does not cover children born to people here illegally, because they are not "subject to the jurisdiction" of the U.S. government.

It's a novel argument, but not a crazy one. The exception was aimed at excluding children of foreign diplomats as well as American Indians born on reservations (though the latter are now granted citizenship by law). But at the time, there was little regulation of immigration, so no one focused on the implications for illegal immigrants.

One senator who supported the amendment said it excluded "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Opponents of birthright citizenship read his statement to mean it excludes not only children of diplomats but children of foreigners.

But the senator may have been thinking of a single group — namely foreigners who belong to diplomatic families, with "aliens" being a needless repetition. As Harvard law professor Gerald Neuman notes, reading his comment to exclude all foreigners would exclude even those whose parents are living here legally — an extreme change that no one in Congress seems to have noticed.

The Supreme Court has given the clause an inclusive reading. In an 1898 case involving the U.S-born son of Chinese parents who were not citizens, it ruled that since his parents were not diplomats, he was an American citizen. In 1982, the court considered the claim that illegal immigrants are not subject to U.S. jurisdiction and responded: "We reject this argument."

It's not impossible that the court, in light of the unprecedented volume of illegal immigration, could change its mind. But it's a long shot. Any effort to repeal birthright citizenship probably has to aim at amending the Constitution, not reinterpreting it.

Either way, it would be a mistake. The lure of economic opportunity is the real magnet for illegal immigrants, who are bound to keep coming as long as they can find jobs better than those available back home.

Nor would depriving their American-born children of citizenship induce many of them to leave. All it would do is create a permanent class of dispossessed innocents living in the shadows.

Keeping the existing policy would be more in keeping with the American tradition of openness and inclusion. Those are a birthright we should be careful not to compromise.