The 2009 Birthright Citizenship Act introduced in the House of Representatives would deny U.S. citizenship to any child born in the U.S. when both parents are unauthorized immigrants. The Act would reverse 144 years of law, first established in the Civil Rights Act of 1866, which granted U.S. citizenship to all persons born in the U.S. “not subject to any foreign power,” such as in the case of children of diplomats.
The Citizenship Clause (also known as the Naturalization Clause) in the 14th Amendment of the U.S. Constitution was enacted in 1868 in order to reverse the Dred Scott v. Sandford decision that African Americans were not and could not become citizens or enjoy any of the privileges and immunities of U.S. citizenship. By enacting this amendment, Congress also sought to protect the principle from repeal by any simple majority in any future Congress.
Therefore, over the years, this principle, based on jus soli, or the right of the territory over children born therein, has withstood challenges, such as in United States v. Wong Kim Ark, 169 U.S. 649 (1898), a U.S. Supreme Court decision that conceded the U.S. citizenship of a U.S.-born child of Chinese parents.
Nonetheless, the debate over birthright citizenship has resurfaced as a measure to reduce illegal immigration even though this group comprises of four percent (including children) of the total U.S. population. Under the Birthright Citizenship Act, U.S.-born children of undocumented immigrants would be denied legal status even though they would be American citizens in all other ways. What is worse is that their descendants could potentially be a part of “a permanent class of unauthorized persons,” according to a recent report of the Migration Policy Institute (MPI).
To bring some common sense into the debate, I looked up the birth place of all the signors of the U.S. Declaration of Independence and found that seven were foreign-born: John Witherspoon (New Jersey), born in Scotland; Button Gwinnett (Georgia), born in England; Francis Lewis (New York), born in Wales; Matthew Thornton (New Hampshire), born in Ireland; James Wilson (Pennsylvania), born in Scotland; James Smith (Pennsylvania), born in Ireland; and Robert Morris (Pennsylvania), born in England.
Seven foreign-born immigrants signed our Declaration of Independence and, if they married foreigners, their U.S.-born children would not be citizens pursuant to the Birthright Citizenship Act of 2009. In addition, if their children married foreigners, their descendants would not be citizens of the U.S., and so forth.
Not only would we establish a “caste” system, we would create a “self-perpetuating class of unauthorized immigrants who would be excluded from social membership for generations,” according to the Migration Policy Institute. The MPI concludes, “[T]he population of unauthorized immigrants would rise from 11 million today to 16 million in 2050, and there would be 4.7 million unauthorized immigrants who had been born in the United States.”
In conclusion, the framers of the 14th amendment were aware of the kind of bias and prejudice that led to the Dred Scott decision and wanted to ensure that it would not cause so much harm as it did to African Americans. It is doubtful that the Birthright Citizenship Act will be successful, but it hurts our image as a leader of the democratic world.