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On the Proposal to Amend the 14th to End Birthright Citizenship

| 27 Comments
Mark B. asked for a thread to discuss this issue. Here are some recent news stories. Here is the Wikipedia entry on jus soli, which is the Latin phrase for what we call birthright citizenship. It is interesting to note that only 16% of the world observes this principle, with we ourselves being the largest practitioner. Here is a separate article on the concept's history in the United States. Discuss!

27 Comments

Thanks Grim! I think this is an interesting political stunt that is doing nothing but reinforcing the republican party's image as hapless and in many ways unserious. Here's why:

Illegal immigration is a serious problem and most Americans are far more likely to be angry about it than our political class is, creating yet another disconnect between the people and the elite. But of the opponents, I would say most opponents of illegal immigration (certainly many) are generally supportive of legal immigration done in an orderly fashion. Yes, some opponents are worried about eugenics or the implications for the political balance, but I think most Americans are simply believers in law and order, and realize that an open border is an invitation for very bad things to come across. For anybody that has gone through the headaches of traveling and returning through the security now in place, its incredibly frustrating that in the mean time thousands of people just walk across the border every week.

And its here that the Republicans are chickening out- this stunt consumes energy and oxygen, and its really just silly because it will never accomplish anything. In fact is reinforces the Bush era image of pretending to protect the border while in fact working to do just the opposite (which continues apace).

I'm a huge believer in the rule of law, so long as those laws are just and justly enforced. I think it is terribly worrisome and dangerous that we have an atmosphere of selective enforcement of our laws so as not to offend constituencies. It is one of the things that has created this political tribalism the Winds of Change is trying to diffuse. I hate to see Republicans continuing to play that game instead of focusing on actually solving problems.

So you want an answer to the baby anchor problem? It's breathtakingly obvious- babies born in the US are citizens, their parents are not. The parents have a choice, take the baby when we deport them, or leave the baby in our foster care system. Problem solved, no need to muck with our Constitution in a kabuki show to rile up the base.

This entire illegal immigration debate is quite possibly the most disingenuous series of lies i've ever seen bandied about in public- from the silly assertion that border cant be effectively controlled (despite thousands of years of evidence to point to), to asserting that because we can't control them perfectly there is no point in controlling them at all, to the incentives business are allowed to provide to lure illegals past the border where if they make it they are relatively free from risk and rife with reward.

I was right there with you until we got to the 'blindly obvious solution'!

The one thing that we could do that would actually make things worse is drop 8% of American births per year into the foster care system. It's a non-optimal way to raise a child, especially since the family isn't dead or imprisoned -- they're right there physically present.

Yet I can't imagine very many families, given Mexico's current political state, choosing to take their baby into that kind of danger and disruption if they had a choice that she could grow up an American citizen, with all those advantages.

I don't have the concerns that some have about the possible cultural shifts from heavy Mexican immigration; actually, I'm highly sanguine about them. I do think it is important that we have control of the pace, and I think it's incumbent upon a nation to be able to secure its borders. Conceding control of territory, especially to these drug lords who are setting up what amount to bandit kingdoms, is not compatible with being a sovereign state.

So, from my perspective, the obvious solution is to tackle the Mexico problem. If they had a better place to live, they might prefer to live there. We could regard these families as refugees until we have stabilized Mexico, which should be undertaken with whatever force is required to achieve it.

After that, I think many of these families might well choose to return home. Some might stay; but that would be much less of an issue if it wasn't a continual flood. As long as it is in a controlled manner, at a pace that allows for cultural integration, Mexican culture has a number of positive qualities. The parts of our country where the two cultures have rubbed together longest and deepest -- Texas and the Southwest -- are some of the best parts of America. We just need to get a handle on the pacing; command the border; and stabilize our neighbor to the south, which is rapidly failing.

By the way, an interesting harmony between this and our other recent debate. I was there arguing that families were about babies; I am here arguing (in part) that babies need families.

You were there arguing that establishing a family was not in any indispensable way about babies; and that families are at least somewhat dispensable to the baby, too ('foster care').

Well the staggeringly obvious solution is to give the babies of illegals to gay couples ;)

Anyway- I don't know how many Mexican parents would actually drop their kids on the state if really given the chance, but my point is that the current system massively incentivizes the practice. I suspect if the standard practice was pack off the illegals quickly and efficiently, few would be able or know enough to file habeus claims on behalf of their baby etc... in practice they'd probably be doing it from their homeland, which is rife with delays and red tape. Probably not worth doing just to get the US to come pick your baby up and put him in foster care... again assuming many parents would opt for such a thing. Thats how you make problems kind of go away using the inefficiency of government to your advantage for once.

If we did this in line with a universal effort to enforce our immigration laws, I think the numbers would end up far lower than we have to think about now. In other words, take away that golden ticket of having a baby here (as well as making it much more difficult to get and stay here) and you just have far less people coming over to begin with. Clearly there is a 'supply' and a 'demand' problem that can be addressed in different ways.

I think this is an interesting political stunt that is doing nothing but reinforcing the republican party's image as hapless and in many ways unserious.

Shocking, Mark!!!!

Are we beginning to agree on what I have been saying for the past 3 years, that the GOP has no philosophy and ever rapidly resembles a sideshow rather than a political party?

Neither the Democrats nor the Republicans take either the drug or immigration problems with Mexico seriously. And, until they do address them without the ridiculous posturing that has surrounded both issues nothing is going to happen.

Is it any wonder that Congress' standing is as low as it is?

There is no conceivable way this will be so amended in the near term (twenty years.) None. It's just a big gotcha question, like "Do you support a federal amendment banning burning the flag? No? Hey, he's in favor of the burning the flag! You heard him!"

And since I've spent a considerable amount of time mocking Europe for their anti-assimilation policies, like generation-long chains of Turkish "guest-workers" in Germany, I am firmly of the opinion that this is a bad idea.

I don't know that I agree that it's inconceivable. We know from Article V that the states can force a Constitutional Convention. At such a convention, a raft of proposals could be floated by delegates sent from the several states, who are completely unconnected to the national-level parties. These delegates would be predisposed to state-level interests, which include getting a handle on illegal immigration.

You'd need 2/3rds of the states to call for such a convention, but we're almost there because of the popularity of the balanced budget amendment. As state budgets continue to be tight, and Federal spending and demands on state budgets continue to rise, the odds of a convention being called are not to be dismissed.

Any amendments proposed by the convention would go to the states to be ratified, which requires a 3/4ths majority; again, though, the national-level government is bypassed. So we'd be talking about proposals with a very wide level of support at the level of the state governments. Things like a Federal balanced budget amendment are a good example: there's very broad support (whether or not there should be, there is). I would expect to see other amendments restricting Federal authority in state matters, because that's how the process is constructed -- to favor state interests, if they are very broad interests that almost all states agree on.

Would this qualify? I wouldn't go so far as to dismiss it. All that depends on just what pressures are bearing on us when and if the convention were called; and how good the arguments are; and, perhaps especially, who the states pick to send as delegates.

That's why I put a time limit on it. There's no way that so many states which are not affected by the issue are going to go to the effort to get it passed. And the issue isn't going to become that dire in the near future.

I am as comfortable dismissing this as I am flag-burning amendments.

I think we're as likely as not to see a Constitutional Convention ihe next ten years, let alone the next twenty; but I have no idea if this would make the cut of things considered. I hope they would spend the time on the larger, structural issues by which our government is tearing itself apart.

Who pays for it?

Since it's never been done, I don't know. It's a short article, so let's look at the relevant part.

The Congress... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress[.]

I would read "Congress shall call" to say that Congress would be required to pay for it. If they chose to use that power to try to block it, you'd have a crisis for the Federal courts to resolve; and if the courts refused to force Congress to live up to the Constitution, casus belli.

Our electorate can't be bothered to toss out the ruling class at the ballot box, and the ruling class can't be bothered to enforce the laws already on the books. I don't see how a constitution convention is likely given the former, and I don't see what use it would be given the latter.

If there is a movement to be made right now, it should be a non-partisan anti-incumbent movement. Just an agreement to vote against whoever has the longest tenure in government regardless of party interest.

Mexican culture has a number of positive qualities

As someone from a Mexican background let me say how much I appreciate your saying so, Grim. And, as a brotherly gesture, let me add that I think American culture also has a number of positive qualities.

Well the staggeringly obvious solution is to give the babies of illegals to gay couples is by far and away the best sentence I've ever seen on WoT. Thanks, Mark B.. That made my day.

The debate above has morphed into whether it is realistically possible to change the 14th Amendment. Still haven't heard why it would be a good idea. Does anyone think it would stem the tide of immigration? Does anyone seriously think those Mexicans come here to bear American babies and that if the babies were as illegal as they were, the parents wouldn't come? Or am I missing the purpose? Is the purpose just to reduce the number of future US citizens who are Mexican in origin?

I don't think its realistic, which is why its such a 'great' political move. Our political parties have this technique of whipping up the base and then bashing their heads into the wall. It generates lots of energy (cash) without the risk of actually having to actually do anything. This is about the equivalent of the Democratic party's hissy fit over Guantanamo Bay. It's kinda like dogs chasing cars, what would they do if they caught them?

This is an issue of frustration.I don't think many people believe it would staunch the flow of illegals, but it would prevent us from having to pay to raise their children. Which is an odd goal considering we pay for them regardless at the moment. You would think there is plenty of low hanging fruit available in just cutting off the benefits we are currently paying to actual illegal aliens... but again, that would require taking on a task that might actually realistically be accomplished. And that is anathema to the political leadership in the current state of affairs. Doing things implies accountability. Bitching about things and biting ankles you can make a comfy career out of.

Mark:

Well, I think they're right to say that the purpose is just to provide a red herring to wave around in hopes of looking serious about fixing immigration.

You know, here in Georgia, we've had heavy immigration over the last thirty years -- not just from Mexico and outside the country, but especially from inside the United States. The "Sunbelt" has been the place of choice for a lot of the movement that has gone on within the country. So, when you say, "American culture has a number of positive qualities too," you're right: but it's at least as disruptive to your culture when millions of them suddenly descend upon you!

I grew up in a poor, rural county in north Georgia. It was close enough to Atlanta that it suddenly began to swell as Fulton and Gwinnett and Cobb counties filled up. Property values skyrocketed, and then a whole new raft of commissioners was elected on the votes of the newcomers (who all voted Republican; we were all old Southern Democrats). These new commissioners raised taxes and began to spur development yet further, until the poor, rural folk couldn't afford to live there: family farms were wiped out and turned into dense apartment complexes or housing developments for the new arrivals.

Looking back on the old county, except at the fringes it's been completely destroyed and remade into Suburbia. I don't think anyone I grew up with still lives there. Every time I go back it makes me sad to see all the old places where once great trees were.

So yeah, mass immigration causes instability. It's not about Mexico, and it's not language nor about their relative poverty and need for social services; it's just a fact about immigration. Even fellow Americans, coming in from once-richer parts of the country as the Rust Belt was emptied of its wealth, have been incredibly disruptive of local culture -- have completely destroyed and replaced it, where I grew up.

When people react to immigration with a sense of alarm, that's what's alarming them: a sense that their culture, everything they know and love, may be washed away. That really does happen. Whether what replaces it is better or not is another question: but you can understand someone who decides he doesn't want his home destroyed, simply because he can't even remember all the reasons he has for loving his home.

When people react to immigration with a sense of alarm, that's what's alarming them: a sense that their culture, everything they know and love, may be washed away.

Yes, but that's life. The only thing constant about life is change. Shakespere wrote about this in the 1600's. With all the goods things technology brings, the speed of change has increased exponentially. Our kids will not recognize the things that we considered staples of Americana.

This is not to say that immigration should be unchecked. Just to note that the mythical America that's in our heads is not coming back. We can either do something with the America we have, or we can bury our heads in the sand. Even if we stopped immigration today (which isn't happening), America will be vastly changed. But it's going to be vastly changed anyway.

Yes, Grim, I can understand people's alarm. However, I don't necessarily advocate creating laws based on their alarm, particularly if I feel their alarm is misplaced.

I think you are using "instability" in a -- dare, I say it -- somewhat idiosyncratic way. Yes, cultures, like societies, like neighborhoods, like nations, change over time, and yes, immigration may be one of several factors responsible for that change. But unless you are under 10 years old, having one's neighborhood change is unlikely to be the result of "instability" in the way I think most people understand the term.

If the changes in rural Georgia over the last several decades are the result of instability then all cultures are inherently unstable and the term loses any force as a description.

As lovely as most of our childhoods were, wanting the world we grew up in to stay recognizably the same is to guarantee frustration and disappointment.

What is needed is an argument for why the direction of change is bad. Why is the US worse off if more of it's citizens come from Mexico than, say, Ireland, or Nebraska. The US, historically, is almost wholly a country of immigrants and their descendants. In that sense, nothing is changing except the place of origin of the immigrants. I don't understand why it is such a problem. Perhaps, being of Mexican ancestry myself, I don't mind the Mexicans as much as others do. That's just a guess.

To some degree; but as an answer to the question, "What is this all really about?", that's what it is really about. People are fundamentally worried about losing everything they love. Slow, measured change is easy to accept -- massive, quick change is not.

Too, these things touch on the most serious issues in our lives: our homes, our families, our communities. I have probably never been as angry about anything in my life as I was when the county used eminent domain to seize the forest where I grew up, and plowed it under to build a sewer line for one of these housing communities. My parents, who owned part of the land, didn't want the land seized; the whole community rallied in unanimous opposition to having their property stolen and destroyed; and the county did it anyway.

The massive subdivision that supposedly justified this destruction was, as it happens, never built. But the sewer line was. I went back to visit my parents, and found... nothing, but where the bulldozers had been.

So what? Change is constant; eminent domain is the law; the county commissioners were under absolutely no obligation to consider the wishes of the people instead of the desires of developers, who could afford more 'campaign contributions' than we could. As long as they can find a way to get elected, they have every legal right to do whatever they want.

There's something missing to that formulation. A government that really does not care about families and communities, but is only out for developers and business interests, has betrayed a kind of basic trust. I'm not against capitalism, but there are some things that ought not to be for sale: some things that aren't just property to be redistributed; and some promises, like marriage, that aren't just contracts.

Anyway, one reason I'm sanguine about Mexican immigration is that I have a sense they may understand all that too. The political sense that they won't be Republicans doesn't bother me; I'm not a Republican either. But they are Catholics, mostly; and they do love their families, enough to suffer separation and hard work for them, as I have also done at times; and one of these days, they may very well want to defend their culture and their families too. I think I may have more in common with them than they know.

By the way, notice that this is not a "change v. stagnation" argument. What I'm talking about is also a change -- potentially, a very significant change. Everything is a change. But some changes sustain things, and some destroy them. If I use a cow to change grass into milk, I'm sustaining the calf that feeds on the milk. If I later change that calf into steak, I'm destroying the calf but sustaining the family that eats the steak.

It's all change. The question is, what's all this change for?

On the question of illegals having children in the US as a foothold for permanent illegal residency, here are a few observations:

- Unlike the US, Mexico does not recognize dual citizenship. If you claim US citizenship by birth, you cannot be a citizen of Mexico. This could be real problem if the parents return to Mexico (voluntarily or not). The child might not be able to claim citizenship until he turns 18, unless the parents obtain a false birth certificate, and he can claim it only by renouncing US citizenship.

- Mexico has something called dual nationality, which they distinguish from dual citizenship. Dual nationality seems to be mostly a liability: dual nationals who are not Mexican citizens cannot vote, but apparently they are required to register for national service even if they live in the US. Dual nationals who enter or leave Mexico must declare their status or face a fine that is described as "heavy" (which in Spanish means "negotiable" I guess).

These restrictions have been liberalized in recent years, as Mexico becomes more shamelessly dependent on illegal income, and like our laws are apparently enforced only to the fullest extent that politics allows.

Before we even consider touching the 14th Amendment we need to do two things at least:

1. Get the Democrats to stop playing Aztlan Revolutionaries and restore the rule of law to immigration. Come November, we might be able to put a check next to this one.

2. Negotiate with Mexico, whether it means a border treaty or changes in Mexican law and Mexican law enforcement. Demanding that they change their tune is not too much to ask. Demanding that they loudly renounce and denounce spurious claims to US territory is not too much to ask.

The more I think about the idea of changing the 14th Amendment in relation to the Congress actually doing its job and going through the tough legislative process that would be entailed in writing a new law, and this idea of shifting this responsibility to all of the state Legislatures, the more I think the whole "issue" is political masturbation on the grandest of scales.

We have real problems, now. How about some real solutions, now.

I am really tired of political leaders wasting the publics time with these "debates" rather than actually doing their jobs.

The strange thing is that some in Congress apparently believe they don't even need an amendment for this.

The 14th says:

"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."

This proposed legislation says:

"TITLE X—CITIZENSHIP 4 SEC. 1001. BASIS OF CITIZENSHIP CLARIFIED. In the exercise of its powers under section of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth."

So -- does the 14th give Congress the power to waive birthright citizenship by simple legislation? Or would this just get thrown out in court?

Also... that law is unjust in exactly the opposite way that the birther claim about Obama is unjust. They claim, you will recall, that he 'isn't a citizen' because his father wasn't a citizen (and he might have been born in Kenya, etc). The fact that his mother (and grandparents) were citizens isn't relevant under the 1950s law, which is absurd. Obviously a mother should be able to pass citizenship to her child.

In this law, it's the other way around: if the mother is illegal, it doesn't matter who the father is. I imagine a man (and US Citizen) falling in love with a beautiful maiden, not thinking to inquire about her immigration status, and later finding that this no-longer maiden was with child. Would we seriously declare that the son of a US Citizen, born inside the United States, wasn't a citizen? To what end, and with what justice?

Of course, if the citizen were to marry her (as a decent man ought to do), maybe it wouldn't be an issue... maybe. That's a point of the law on which I'm fuzzy.

What a complete waste of time.

I don't see this as a legal problem at all. The laws are on the books, the agencies are funded (over-funded doubtless), the laws are simply not being enforced. This is a purely political problem and its seems that nobody involved is doing anything serious at all. Say what you want about the people and government of Arizona, at least they are doing something proactive.

Oh, it is not just a political problem, it is anything but that. Neither it is a national security one, but anyway in this particular case, it is yours.

I just wanted to point out that the argument that only the 16% of the world's countries observe the ius soli principle is not so valid as those who use it may think. For instance, many Latin Americans can produce a birth certificate showing that among his ancestors was somebody born in an EU country, which makes them eligible for citizenship in Europe. Please note that Europe suffered several wars and in many cases the information provided by them cannot be checked since the files were lost.

Grim: A number of legal scholars do not believe that it is necessary to amend the Constitution. To quote one generally respected on the Left and the Right (when they agree with him), Justice Posner in one of his opinions:

That is one rule that Congress should rethink and another is awarding citizenship to everyone born in the United States ..., including the children of illegal immigrants whose sole motive in immigrating was to confer U.S. citizenship on their as yet unborn children. This rule, though thought by some compelled by section 1 of the Fourteenth Amendment, which provides 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," and in any event codified in 8 U.S.C. § 1401(a), which provides that "the following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof," makes no sense. . . .

bq. We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship, rather than to subject U.S. citizens to the ugly choice to which the Immigration Service is (legally) subjecting these two girls. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it. Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116-17 (1985); Dan Stein & John Bauer, "Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants," 7 Stanford L. & Policy Rev. 127, 130 (1996). The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.

I merely dispute the necessity of a Constitutional Amendment, until proven necessary. Those who insist otherwise, Republican or Democrat, or merely attempting to avoid responsibility for the thorny issue of immigration.

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