Editorial:  The ‘birthright citizenship’ debate

Any child born in the United States is automatically a U.S. citizen, even if his or her parents are in the country temporarily or illegally. That long-standing guarantee has given rise to one of the many debates over immigration and citizenship that have confounded Congress in recent years. Some Americans oppose “birthright citizenship,” either because they see it as arbitrary and undeserved or because they believe it encourages women to enter the country illegally to give birth. They are horrified that about 4 million children of immigrants living here illegally possess U.S. citizenship.

“People come here to have babies,” Sen. Lindsey Graham (R-S.C.) said in 2010. “They come here to drop a child. It’s called ‘drop and leave.’”

Graham has suggested abolishing birthright citizenship through a constitutional amendment; others believe it can be accomplished by federal statute. Currently pending in Congress is the Birthright Citizenship Act of 2013, introduced by Sen. David Vitter (R-La.) and Rep. Steve King (R-Iowa). Under that proposal, a child born on U.S. soil would become a citizen only if at least one of his parents was a U.S. citizen or national, a lawful permanent resident or an immigrant serving in the U.S. military.

Not all of the critics of birthright citizenship are xenophobes or hysterics. Nevertheless, the attack on it is ignoble, based on a canard that women are streaming into the United States to bear “anchor babies” who will secure their own — and, with luck, their parents’ — residence in this country. The reality is that conferring citizenship on any child born in the United States — regardless of the immigration status of its parents — is an important affirmation that being an American doesn’t depend on bloodlines.

Roots in the 14th Amendment

The debate over birthright citizenship begins — but doesn’t end — with the 14th Amendment, passed in the aftermath of the Civil War, which says in part, “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.”

It’s widely, but not universally, agreed that the 14th Amendment confers U.S. citizenship on children of foreigners in the country illegally. In 1898, the Supreme Court considered the case of Wong Kim Ark, who was born in San Francisco to Chinese parents who were permanent residents of the U.S. but not citizens. In concluding that Wong Kim Ark was “subject to the jurisdiction” of the U.S., the majority cited English common law and the principle of jus soli (Latin for “right of the soil”), according to which nationality is determined by place of birth.

Peter Schuck, a professor emeritus at Yale Law School, believes that the court’s holding was consonant with the intentions of the Congress that wrote the 14th Amendment — namely, that citizenship would be conferred on children born in the U.S. to “resident aliens.” But does that principle extend to immigrants living in the country illegally (a category that didn’t exist at the time the amendment was adopted, when immigration was unrestricted)? Schuck says no; he believes that Congress could abolish or modify birthright citizenship for the children of foreigners in the country illegally.

But even if Congress could, should it?

The notion that birthright citizenship is a major magnet for illegal immigration is based on a combination of anecdotes about “maternity tourism” (especially from China) and an exaggeration of the benefits that accrue to the parents of a child born here. Yes, citizens may sponsor their parents’ admission to the U.S., but only when the citizen is over 21. In other words, a woman who comes to the U.S. to have a baby must wait two decades for the child to grow up before she herself can be sponsored for admission.

It’s true that an undocumented parent may be eligible for some benefits for her child, and under current law some unauthorized immigrants with U.S.-born children may qualify for relief from deportation. And of course, parents might want to have a child in the U.S. not out of pure self-interest but because their children will derive benefits from U.S. citizenship. But it is not clear that women decide to enter the U.S. illegally because of these potential advantages (or are even aware of them). It seems unlikely that this is a decisive factor in many cases.

Illegal immigration is a problem, but it should be addressed in a comprehensive fashion. A Senate bill passed last year, in addition to legalizing immigrants already in the U.S., would restrict illegal immigration by improving border security and making it harder for employers to hire people here illegally. Those are better ways to deal with the problem than abolishing birthright citizenship.

The notion of citizenship

Not all critics of birthright citizenship oppose it because of its supposed encouragement of illegal immigration. Schuck, for example, argues that it undermines the notion of citizenship as “a mutual relationship to which both the nation and the individual must consent.” He has argued that the Congress that approved the 14th Amendment shared this understanding, which was also reflected in its passage of a law allowing Americans to shed their U.S. or foreign citizenship. Perhaps so, but many children born in the U.S. to American parents also fail to develop much of a relationship with the political community. Many of them, for example, never vote. Yet no one would dream of questioning their citizenship.

Unlike those who would abolish birthright citizenship, Schuck would modify it so that a child born in the U.S. to undocumented parents could obtain it later if he or she developed a “genuine connection” to American society — by remaining in the country and, say, attending U.S. schools. But that proposal goes too far for those who defend birthright citizenship and not far enough for those who want to end it.

Birthright citizenship is an emblem of equality and inclusion. Many other countries confer citizenship on the basis of bloodlines, what the law calls jus sanguinis. That makes sense when nationality is conceived of primarily in terms of ancestry or tribe or race or ethnicity. But in America, a nation of immigrants, citizenship is defined differently. That principle was established when the 14th Amendment was adopted, and it should not be tinkered with today in an effort to keep out unwanted immigrants. Indeed, the decision to grant citizenship to everyone born on U.S. soil was made in part so that members of particular minority groups would not be required to win the favor of the majority to claim the privileges of American citizenship

Birthright citizenship provides a clear standard that sweeps away questions about whether someone has the proper ethnicity or antecedents to be an American. There are too many examples in history of people being victimized because of who their parents were. There is no good reason to add to them.

This is part of an ongoing conversation exploring the meaning of citizenship in America today. For more, join us at latimes.com/citizenship and #21stCenturyCitizen. We’d love to hear from you. Share your thoughts, rebuttals and experiences with us at [email protected].

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