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  • Article: Birthright Citizenship: What It Is and Why We Need to Preserve It. By Wendy Feliz

    Birthright Citizenship: What It Is and Why We Need to Preserve It



    There has been a media frenzy over one of the more draconian components of Republican presidential contender Donald Trump’s immigration policy platform. In his plan, released earlier this week, he writes that the U.S. should “End Birthright Citizenship.” However, despite the attention Trump is getting for this, he is not the first—nor the last—to suggest changing the Constitution as a way to reform our immigration system. Volumes have been written in defense of birthright citizenship, yet it is regularly attacked by anti-immigrant politicians.

    In 2010, when the Arizona legislators behind SB1070 went after birthright citizenship, Michele Waslin, Ph.D. explained the background and ramifications of changing it:

    “Birthright citizenship, or the principle of jus soli, means that any person born within the territory of the U.S is a citizen, regardless of the citizenship of one’s parents. This principle was established well before the U.S. Constitution, and was enshrined in the Fourteenth Amendment. It was necessary to include the citizenship clause in the Fourteenth Amendment because the Supreme Court’s Dred Scott decision of 1857 had denied citizenship to the children of slaves. Following the Civil War, the Fourteenth Amendment righted that injustice and became the foundation for civil rights law, equal protection, and due process in the United States.”

    Waslin also explained the ramifications of altering it:

    “Far from affecting only illegal immigrants, birthright citizenship impacts everyone. If simply being born in the U.S. and having a U.S. birth certificate were not proof of citizenship, Americans would have to navigate complex laws to prove their citizenship. Other than a birth certificate, most Americans do not have government documents that establish U.S. citizenship.”

    In 2015, when the House Judiciary Committee held a hearing to attack birthright citizenship, Mark Noferi, Esq. wrote that repeal would not be upheld by the Supreme Court and attacks are based on faulty reasoning:

    “…it is doubtful that legislation to repeal birthright citizenship would be constitutional. The Fourteenth Amendment to the U.S. Constitution states that ‘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.’ Based on this, the Supreme Court has upheld birthright citizenship for children of foreigners several times—holding that the Fourteenth Amendment means what it says, especially in light of its history…Moreover, repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth. ‘Anchor babies,’ a term the American Heritage Dictionary calls offensive and disparaging, make no sense given that a child cannot sponsor a parent for citizenship for at least 21 years.”

    Marshall Fitz, Esq. also defended it as a core part of our American heritage and reminds those who continue to attack it of its history:

    “Why do these Republican members want to revive the long moribund policies that their party’s most revered president (Lincoln) fought so hard to eradicate? Why do they want to create once again a legally sanctioned vulnerable and exploited underclass in this country? In order to advance an extreme anti-immigrant agenda under the dubious theory that changing the 14th Amendment’s citizenship rules will deter unauthorized immigration.”

    Fitz adds that the “14th Amendment is not just another immigration policy…It defines who we are as a nation” and “categorically rejects the notion that America is a country club led by elites who get to pick and choose who can become members.”

    Eliminating birthright citizenship would do nothing to solve our immigration issues. In fact, it could have the opposite effect by increasing the size of the undocumented population. The Migration Policy Institute study found that if citizenship were denied to every child with at least one unauthorized parent, the unauthorized population in the U.S. would reach 24 million by 2050. Ultimately, this idea does nothing to advance real, immigration reform.

    Photo by Katelyn Kenderdine.

    This post originally appeared on Immigration Impact. Reprinted with permission.

    About The Author

    Wendy Feliz is the Director of Communications at the American Immigration Council. Prior to joining the Council, Ms. Feliz served as Director of Development at New America Media, after having worked at the Open Society Institute, and public radio station WAMU 88.5 as the Manager of Foundation Relations and Public Information. Ms. Feliz has spent much of her career in the non-profit world including with The California Hispanic Commission on Alcohol and Drug Abuse in East Los Angeles and The Young Adult Institute and Latino Worker’s Center in New York City. Ms. Feliz received her M.A. in Public Communication from the American University in Washington D.C. and she holds a B.A. in Liberal Arts from the New School University in New York.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 2 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      With all due respect to this well-motivated article, birthright citizenship needs a stronger defense than this. Merely repeating pious platitudes about "who we are as a country" is not enough to combat the onslaught of bigotry that has always been behind the movement to restrict this right in order to exclude African-Americans at the time of Dred Scott, Asians at the time of the Chinese exclusion laws, and, now, Mexicans and other Latinos in the age of Donald Trump. Attacks on birthright citizenship are nothing but an expression of racism and bigotry. Immigration advocates need to speak out against this directly, loudly and clearly.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Birthright citizenship came to us via Calvin's Case in 1608 England. It was a property case about a young boy born in Scotland who had inherited property in England. The boy needed to be considered a subject (citizen) of England to inherit the land. Newly crowned King James was from Scotland and the King wanted to know who owed allegiance to the king, and to whom he owed protection. The result was a decision that anyone born in any land ruled by the king was a subject, even children of foreigners, as long as they were not diplomats or part of an invading army. The concept of birthright citizenship was brought to the American colonies. This is why the children of Dutch, French, and German immigrants in America were citizens of the colony and of Great Britain. They had the same rights as children of British subjects.

      To reverse the Dred Scott decision Congress passed the Civil Rights Act of 1866, which stated that anyone born in the United States is a citizen, except children of foreign visitors. There were no immigration laws at the time, so there were no illegal aliens, but Congress wanted to exempt the children of anyone just visiting the country temporarily. This went beyond the children of diplomats. Indians not taxed were also exempted. As you pointed out, the Dred Scott case stated that Blacks were not, and never could be, citizens of the United States. To strengthen the 1866 law, the 14th Amendment was added in 1868. The wording changed and children of temporary visitors were no longer exempted. Therefore, the statements by the author of the 14th Amendment that it did not pertain to children of foreign visitors is meaningless. Words have meaning and the specific change in words in the 14th Amendment makes it apply to everyone who is not a high ranking diplomat. Many decades ago Congress passed a law stating that the children of these high ranking diplomats may apply for permanent resident status based solely on their birth in America (if the children remain here and are not taken out of the country by their parents at a young age).

      Anchor babies are not the problem most republicans believe them to be (I am a conservative republican). The problem is that our free press is too lazy to investigate claims by stupid politicians and perceived opinions become reality. It is estimated that 400,000 babies of illegal aliens are born in the United States every year. That would mean 800,000 potential anchor baby parents immigrating after 21 years. That is not happening. There is an immigration category for parents of U.S. citizens. For the past 10 years immigration in that category has been between 100,000 and 120,000. Of this total, about 85% are the parents of naturalized citizens, not of anchor babies. That puts the yearly number of anchor baby parents immigrating at about 15,000 to 20,000.

      Donald Trump is wrong to believe most anchor baby immigrants come from Mexico. Unlike the Asians, Mexican anchor baby parents remain in the United States. When their citizen babies turn 21 they are unable to immigrate because of their unlawful presence, which requires them to return to Mexico for 10 years. I supervised the immigration office in Fresno, a heavily Hispanic area, for 27 years. I often asked officers doing immigrant interviews about anchor baby parents immigrating. The answer was they rarely saw this. I had to ask because there is no statistical record kept of anchor baby parent immigrants. Those who don't understand immigration laws would assume that all parents of citizens who immigrate are anchor baby parents, but that is not true. Most are the parents of naturalized citizens. Anchor babies are not a problem. With 1 million legal immigrants per year, 15 to 20 thousand anchor baby immigrant parents is not a problem.
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