Race, Immigration, and the Birthright Controversy
By Professor Victor M. Goode
Shortly after a federal court judge stayed some of the more controversial portions of Arizona’s SB 1070 immigration law, a new line of attack on immigration policy emerged. This new assault seeks to have the children of undocumented immigrant parents who are born in the US declared ineligible for citizenship despite the “birthright provision” of the 14th Amendment. Some conservative members of Congress agree, claiming that the clause, which provides for automatic citizenship for those born in the United States, has been misapplied and must be corrected either by the courts or by legislation.
The language of the clause in question states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside.” Despite the plain wording of this provision, its critics argue that an examination of the Congressional Record reveals that it was never intended to apply to the children of “undocumented immigrants” even if they are born in the United States.
When debating the proposed language of the amendment, its author Senator Jacob Howard of Michigan said that the provision would not grant citizenship to “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Critics of our current immigration policy have focused on this statement arguing that the words “foreigners” and “aliens” is further proof that the framers of the amendment never intended it to grant automatic citizenship to the children of undocumented persons who do not have permanent resident status.
They argue that the citizenship sentence must be taken apart to discern its real meaning. The phrase “subject to the jurisdiction thereof…” means that one has complied with all the conditions and requirements of U.S. law. A person who has entered the country illegally by definition fails this requirement and their children therefore cannot qualify for the right of citizenship by birth.
The fallacies of this argument are obvious and numerous. This line of reasoning does not clarify our understanding of the Constitution, but rather adds to the continuing assault on immigrants, this time by questioning the citizenship status of their children who are born here. Original intent is certainly one among several theories used by courts in interpreting the Constitution. But the critics of the birthright clause seek to resurrect an argument that has been settled for over a hundred years. In doing so they ignore the role that race has played in influencing our country’s approach to immigration and citizenship and allow an important policy debate to occur within the shadow of racial bias.
