Keeping the 14th Amendment

The 14th Amendment to the Constitution speaks in unusually emphatic language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Not most persons or only those who are white or who are born to citizens. All persons.

Yet some Americans hold a fringe view and would deny citizenship to those whose parents entered this country illegally. That idea so violates our history and law that it has long been consigned to the periphery, but recent political posturing by Sen. Lindsey Graham (R-S.C.) and others has brought the debate about birthright citizenship into the mainstream. Graham’s motives are transparent: He has made one too many deals with Democrats and now is eager to placate his base. Others are in the same situation. Gone is the statesmanship of Sen. John McCain (R-Ariz.), who once reminded his constituents that illegal immigrants were “God’s children too.” And only months ago, Graham himself braved his party’s ire to craft reform legislation that included a pathway to citizenship for illegal immigrants. Today, as if referring to cats and dogs instead of women and babies, he says of illegal immigrants: “They come here to drop a child.”

Graham knows that birthright citizenship is not about to be repealed. That would require an amendment to the Constitution. Two-thirds of both the House and the Senate would have to approve it, as would three-quarters of the states. Here in California, neither Meg Whitman nor Carly Fiorina, Republican candidates for governor and senator, respectively, supports the idea, nor do their Democratic opponents. So why is this issue being debated? Because it’s a freebie: Conservatives can tout it without fear of it coming to pass, thereby proving their toughness without having to take responsibility for the consequences.

At the same time, birthright citizenship strikes a nerve with a middle class that feels exploited by the interests of well-to-do employers seeking low-wage labor, and that is fed up with a Byzantine system of laws that appear to be ignored or enforced with no discernable logic. Animosity toward illegal immigrants often intensifies during hard times, and now is no different. Unemployment is stuck at 9.5%, foreclosures rose 75% in urban areas during the first half of this year, and in California, income dropped for the first time since World War II. And that’s not all. The complexion of the United States is changing. The nation’s Latino population doubled from 1990 to 2008. By 2050, Latinos will make up almost one-third of the U.S. population; whites are projected to become a minority, at 47%. As they attempt to hold back that tide, those who are unsettled by it have turned to the idea of denying citizenship to those born here.

But what would it solve? Citizenship does not confer the right to live or work in the United States. Immigrants, legal and otherwise, have jobs, buy homes, start businesses, send their children to school, have access to the healthcare system and pay taxes. The Supreme Court has ruled that all children have a right to K-12 education, and federal law requires hospitals to provide emergency medical care to all. Eliminating birthright citizenship would not change any of that.

What it would do is deny American children the right to be a part of the country of their birth. The 14th Amendment was enacted in response to Southern states’ attempts to create laws to keep newly freed slaves in bondage. By extending to blacks a right that had been automatically bestowed on almost all others — the glaring exceptions were Native Americans and Chinese immigrants — the 14th Amendment corrected a fundamental flaw in the Constitution. It ended a permanent underclass, a laboring class of noncitizens. Withdrawing citizenship wouldn’t drive immigrants away; it would simply increase the population of illegal immigrants exponentially, generation after generation.

Were there compelling reasons to revoke this fact of American life and law, it would be one thing. But what are the arguments in support of it? That birthright citizenship draws immigrants to the U.S.? No. Studies have shown that the majority of illegal immigrants come to work and to be reunited with family already here. That the citizen children of illegal immigrants provide a route to permanent residence for their parents? No. Those children first must reach 21, and only then can they petition for their parents to join them; the wait can last more than 18 years. So much for “anchor babies.” Lastly, there is the supposed industry of “birth tourism” — the phenomenon of wealthy foreigners visiting the U.S. specifically for the purpose of giving birth to a child who will be a citizen. Yes, it is an abuse of birthright citizenship, but it is a small one. There is no evidence that millions of children are the products of luxury vacations.

There is one truth buried in the arguments of those who would tamper with the Constitution to deny citizenship to children born here. Many immigrants come to this country, legally and illegally, because they want their children to grow up in America and participate in its dynamic society. That is a testament to this nation’s allure. It should be a source of pride, not fear.

The immigration system is broken, but it’s not our Constitution that is to blame, it’s Congress. No matter how much politics distorts this debate and vilifies immigrants, it is not constitutional guarantees that are hurting the nation. It is the refusal of legislators to enact reform.