Another Welcome Casualty of the Midterm Elections: Efforts to Scale Back Birthright Citizenship

by Peter Spiro

An incident of anti-immigrant sentiment, there have been some prominent calls over the last two years or so to scale back the near absolute rule of territorial birthright citizenship under which anyone born in the United States (save the children of diplomats) is extended citizenship at birth. In the last Congress several bills were introduced that would have limited birthright citizenship to the children of citizens and legal aliens (either through constitutional amendment or by statute, the latter on the argument that territorial citizenship is not constitutionally required). These proposals were getting press (see here and here), and some legislators and restrictionist advocates clearly saw a political payoff to pressing the issue.

I don’t think these efforts were going anywhere, unlike related proposals on the immigration policy front. Even though the Supreme Court has never directly held that the children of undocumented immigrants are entitled to citizenship, as a matter of constitutional practice the birthright citizenship rule is entrenched. It easily weathered similar attacks during the last major bout of restrictionist resurgence in the mid-1990s, then notwithstanding the challenging work of scholars Peter Schuck and Rogers Smith which lent some intellectual respectability to the campaign. More recently, Yaser Hamdi’s case offered the Supreme Court a chance to take up the question. Hamdi was born in Louisiana during his father’s short stint there as an oil worker, but he had no other organic connection to the US; an amicus brief from Chapman Law School’s John Eastman arguing against his citizenship status found no takers among the Justices.

But if there were any traction to the amendment proposals, they are now clearly dead in the wake of the midterm elections. Immigration control failed to resonate as an issue with voters, and several prominent restrictionist candidates went down to defeat. What that means for immigration reform may be unclear – I tend to think that it presents a major opportunity, given President Bush’s receptivity to balanced solutions, though other articulate observers have suggested otherwise – but it surely will put an end to any mainstream discussion of scaling back birthright citizenship. Coupled with the 1990s episode, I think we can now take territorial birthright citizenship as tested and settled.

5 Responses

  1. Readers might also be interested in a book I learned about from Mary Dudziak’s Legal History Blog (Nov. 11, 2006): Hiroshi Motomura’s Americans in Waiting: The Lost Story of Immigration (New York: Oxford University Press, 2006). The following description is from OUP’s site:

    ‘America is unquestionably a nation of immigrants. And yet throughout its history the practicalities of immigration have inspired more questions than consensus. Who should be admitted? What should the path to citizenship be? Despite national security concerns over enemies penetrating our borders, the number of foreign-born people living in the United States grew to 35 million in 2005, an all-time high. A coherent and rational immigrant policy is more necessary than ever.

    In Americans in Waiting , Hiroshi Motomura discovers in our national past a simple yet powerful approach to immigration and citizenship. Rewriting the conventional story, Motomura uncovers how for over 150 years, many immigrants were immediately put on track to U.S. citizenship. They were eligible to homestead land on the western frontier and entitled to overseas diplomatic protection. Citizens-to-be were even allowed to vote. In sum, immigration was assumed to be a transition to citizenship, and immigrants were future citizens–Americans in waiting.

    Once central to law and policy, this view has all but vanished. Beginning in the early twentieth century, the United States began to treat its immigrants in one of two ways: as signatories to a “contract” that sets the terms of their stay in this country, or as “affiliates” who can earn rights only as they become, over time, enmeshed in the nation’s life. Immigration is now seen too often as a problem to be solved, rather than a pillar of our nation’s strength.

    A panoramic history of the past 200 years of immigration and citizenship in the United States, Americans in Waiting offers a clear lesson: only by recovering this lost of history of immigration can we ensure that both current and future citizens share in the sense of belonging that is crucial to full participation in American life.’

    In addition, the indefatigable and brilliant Jim Chen at Jurisdynamics has had a series of informative and eloquent if not moving posts on immigration, complete with beautiful photos and graphics, as well as excellent links: ‘Born in the USA,’ ‘Yo soy peregrino fronterizo,’ ‘Soy hispano, y yo voto,’ ‘Un nuevo nacimiento de la libertad,’ and ‘El nuevo corazon de las tiniebras.’

    In short, kudos are due Professors Spiro, Dudziak and Chen for keeping us intelligently informed on the legal and other dimensions of immigration and citizenship.

  2. Mr. Spiro says, “Immigration control failed to resonate as an issue with voters, and several prominent restrictionist candidates went down to defeat.”

    The one is not evidence of the other, and the American people overwhelmingly do not favor the “comprehensive” amnesty-based proposals from the Senate and House. Further, this scaling back of birthright citizenship is merely temporary — for this Congress and ride only.

    Lastly, no other Western country, none, has birthright citizenship, so naturally those on the left holding the international communities opinion above all should support scaling back of birthright citizenship, right? Insert chirping crickets here. /end sarcasm>

    Mr. O’Donnell’s prolix commentaries are, as always seemingly, tangential while missing the broader point, which lest he miss it yet again, is that immigration in 2006 is vastly different from immigration waves of the past (in scope, in country of origin, in the welfare state existing in the U.S., in the ease of communication and transport back and forth, etc.) He notes “immigration was assumed to be a transition to citizenship, and immigrants were future citizens–Americans in waiting.” Unfortunately, this assumption is no longer true for a very large number of current immigrants, illlegal or not, who plan (realistically or not) to return at some point to their country of origin, but due to circumstance thereafter remain permanent, despite never having taken the mental leap to cut the cords with the old country and become a “full American” in thought and action.

    As a last parting shot, Milton Friedman noted you can have either a welfare state or open immigration, but not both.

  3. Readers might also be interested in the articles and books noted in PrawfsBlawg’s ‘research canons’ entry for ‘immigration and naturalization law.’ At scroll down on the left under ‘Categories’ to ‘Research Canons.’ From there, scroll down to the entry for ‘immigration and naturalization law.’

  4. Why is birthright citizenship so important? Do you not find it problematic for people to come here illegally just so they can have kids, preventing them from being deported, and cheat the system? If people are legally here their children should obviously be citizens; but if they are breaking the law, I don’t see why we should reward them.

  5. In response to jvarisco’s comment, the real reason it is important is very practical: we don’t want a large underclass living in the country with no hope of advancement.

    By cutting off birthright citizenship, you squelch any real hope for assimilation. Instead, you generate a population of essentially “guest workers” who, in spite of long residence, are second-class members of society. Their children grow up being second-class members too, aliens in a land that doesn’t accept them. That’s a near perfect recipe for social unrest.

    Could we even deport these people if we wanted to? Deportion requires the country of origin cooperate, an unlikely event if we seriously attempted to deport millions of Mexican nationals at once.

    It might offend your sense of fair-play that people sneak across the border so their children can be born American citizens, but I contend that it is by far the lesser of two evils.

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