April 7, 2010
Written by C.N.
Immigration reform is likely to be President Obama’s next major legislative battle and all sides are gearing up for a fight. In that context, I received the following email (reprinted in its entirety) from some sociology colleagues around the country in response to a recent commentary by conservative columnist George Will.
Response to George Will on the Birthright Citizenship of Children of Undocumented Immigrants
As immigration scholars, we beg to disagree with George Will’s argument (Washington Post, Sunday March 28, A15) that “the simple” solution to unauthorized immigration is a re-interpretation of the 14th Amendment’s citizenship clause to end birthright citizenship for children of unauthorized immigrants. This position, which resurfaces every few years, is a-historical, and inconsistent with constitutional principle and with American values.
“Birthright citizenship” refers to the principle of granting citizenship to any person born within the United States. This practice is derived from the first section of the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Mr. Will, leaning heavily on an article by Lino Graglia, argues that there are three main reasons why this clause does not apply to children of undocumented immigrants: 1) unauthorized entry was a non-issue in 1868 because there were no immigration restrictions when the Amendment was written; 2) undocumented immigrants enter the country without the consent of the U.S. and thus can neither be construed to be “subject to the jurisdiction thereof” nor to owe allegiance to this country; 3) American Indians were excluded from birthright citizenship because they were considered members of autonomous tribes that did not owe allegiance to the U.S. All three claims are incorrect in their interpretation of the historical record.
Mr. Will’s assertion that the U.S. had no immigration restrictions prior to 1868 is false. Congress passed prohibitions against the slave trade in 1808. Because traders ignored the prohibition, this relegated imported slaves to the category of an “illegal commodity” if not an “illegal alien.” States and localities had also been enacting restrictions on immigration since colonial times. States had “pauper laws” targeted at immigrants from Europe and many later introduced head taxes to discourage the entry of poor Europeans. Wouldn’t individuals who evaded quarantine laws or head taxes most likely qualify as “illegal aliens” in modern parlance?
In Mr. Will’s interpretation of the 14th Amendment, the phrase “the jurisdiction thereof” excludes immigrants because as foreigners they do not owe allegiance to the U.S. government. However, the text of the Amendment does not require “allegiance”; it simply speaks of “jurisdiction.” Furthermore, the two terms do not have the same meaning as Mr. Will implies. In fact, Senator Cowen (R-PA) explicitly opposed the Amendment on the grounds that it would turn into U.S. citizens the children of people who “owe [my state] no allegiance; who pretend to owe none …”
As Harvard Law Professor Gerald Neuman notes in his book Strangers to the Constitution, being “subject to the jurisdiction” of the U.S., did encompass the vast majority of non-citizens, including undocumented immigrants. In fact, being “subject to the jurisdiction” of the U.S. means no more than being subject to the laws and rules of the U.S. government. As Justice Scalia has noted, when Congress says that a group of people are subject to the jurisdiction of the U.S., this means that Congress “has made clear its intent to extend its laws [to this group].” Surely, Mr. Will would be the first to admit that regardless of their immigration status, foreigners are subject to U.S. laws and expected to comply with them.
Kwaachund (Mohican for “chutzpah”) best describes Mr. Will’s comparison of the exclusion of “Indians not taxed” in 1787 or 1868 to birthright citizenship of children in the U.S. today. He forgets that American Indians were here first, and that the Constitution of 1787 and the 14th Amendment of 1868 acknowledged precedence for Native people by recognizing the sovereignty of tribes over their members, that is, “Indians not taxed.” This is not the same as a fear on the part of the United States in 1868 that American Indians had a “divided allegiance” to some foreign power, as Mr. Will says.
The U.S. insisted that American Indians recognize federal political supremacy through an allegiance clause in the many treaties signed with tribes up to 1871. The State of Georgia in the 1820s sought to abrogate one such treaty and have the Cherokee Nation described as “aliens, not owing allegiance to the United States.” In 1831, Justice Marshall famously rejected Georgia’s formulation and postulated that American Indian tribes were “domestic dependent nations.”
Neither Will nor Graglia are the first (and probably not the last) to argue that a “simple solution” to undocumented immigration is the repeal of birthright citizenship for the children of undocumented immigrants. Yet, it is important for readers to note that this “solution” is neither “simple” nor consistent with the principles and values embedded in the Constitution. As Professor Neuman states, “[the authors of the 14th Amendment] refused the invitation to create a hereditary caste of voteless denizens, vulnerable to expulsion and exploitation.” Contemporary scholars, politicians and pundits will do well to heed this advice.
Alexandra Filindra, Ph.D.
Taubman Center for Public Policy and American Institutions
Donna R. Gabaccia, Ph.D.
Director, Immigration History Research Center, University of Minnesota
Rudolph J. Vecoli Chair of Immigration History Research and Fesler-Lampert Chair in the Public Humanities (2009-2010)
Immigration History Research Center
James W. Oberly, Ph.D.
Professor of History, University of Wisconsin-Eau Claire
Professor, Hubert H. Humphrey Institute of Public Affairs University of Minnesota
Rubén G. Rumbaut
Professor of Sociology, University of California, Irvine
 Neuman, Gerald.1996. Strangers to the Constitution: Immigrants, Borders and Fundamental Law. (Princeton University Press)
 Spector v. Norwegian Cruise Line Ltd., 125 S. Ct. 2169, 2194-95 (2005) (Scalia dissenting).
To summarize my colleagues’ excellent arguments, denying citizenship rights to children born in the U.S. of unauthorized immigrant parents is not a “simple” way to address the larger issue of why such immigrants come to the U.S. Whether conservatives like George Will can recognize or accept it, and as several recent books explain in more detail, ultimately there are a variety of institutional and economic factors and causes that have nothing to their children being citizens.
In fact, the argument that denying citizenship to certain groups is a good idea is (1) based on incorrect historical and constitutional assumptions and (2) only reinforces our nation’s history of selective discrimination and exclusion that has formed the foundation for many of the social divisions in our society today.
So like I said, in terms of immigration reform, selectively denying citizenship is an example of what not to do.
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Suggested reference: Le, C.N. . "Immigration Reform: What Not To Do" Asian-Nation: The Landscape of Asian America. <http://www.asian-nation.org/headlines/2010/04/immigration-reform-what-not-to-do/> ().
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