Cons+of+14th+Amendment

The citizenship clause is a bedrock principle of civil rights and part of what makes us all Americans. Never in our nation’s history have we amended the Constitution to take away someone’s rights, and we should not do so now. []

This country needs immigration reform. However, changing the Constitution to reflect the racial tensions of the day is an inappropriate solution and demeans the values that this country was founded on. As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases. The question is how this new debate will affect the coming midterm elections. Republicans are gambling on gaining enough conservative votes over immigration concerns to support them in November. Often, emotions draw voters to the polls, and this new attack on the 14th Amendment may either gather support from upset conservatives or cause victimized Latinos to shun the Republican Party What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society

Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship).

“Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8% of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.”

Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act.

Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.”

**“Anchor Babies”** Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed..” The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status.

The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Roberto Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants.

Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.”

What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society.

"If you go back to the history of the 14th amendment, why was it passed, why did we take away from states the right to give citizenship and give it to the federal government, it was because we were worried states would disenfranchise newly freed slaves," Coburn told reporters. "There was never an intent by our founders, nor if you take the readings, that just because you were here and you have a child born here and you were here not as a resident, that your child would become a citizen. So, I think it's an interesting thing to look at I'm not sure I'm going to embrace it but might. I think we need to look at it." "There's the other side of it, that we have a whole new cottage industry that people of great wealth are coming here to have children too," Coburn added, "so that they can create a basis for anchoring themselves to citizenship in this country." Sens. David Vitter (R-La.) and Rand Paul (R-Ky.) introduced a [|proposal to amend the Constitution] "so that children born in the United States are only considered automatic citizens if one parent is a U.S. citizen, one parent is a legal immigrant, or one parent is an active member of the Armed Forces. They could also follow the traditional naturalization process to attain citizenship." As a preliminary matter, recall that Paul ran as a "constitutional conservative." But that apparently did not mean that he was enamored of maintaining elements of the Constitution that have operated since the Civil War. If mucking around with the 14th Amendment is "constitutional conservatism," then these words have no meaning. There is nothing conservative about a radical constitutional revision, the need for which has yet to be established. Usually, when a constitutional amendment is proposed -- for example, repealing prohibition or securing voting rights for newly freed slaves -- there is some agreement that there is a problem of such magnitude that the Constitution should be altered. Here, the amendment is offered in search of a problem.

Immigration studies by the [|Pew Hispanic Center] and [|Douglas Massey] of the Mexican Migration Project have demonstrated that the drivers for immigration are jobs and family reunification. In fact, roughly 80 percent of immigrant mothers in 2008-2009 had been in the U.S. since 2005, and 90-95 percent were here over a year before having a child. Moreover, a child cannot under federal immigration law help a parent attain citizenship until that child is 21 years old. In sum, pregnant women are not stumbling over the Rio Grande en masse in search of the closest obstetrics wing. A recent [|Migration Policy Institute study] suggested that the consequences of declaring that children born in the U.S. to illegal immigrants are themselves illegal would, by 2050, lead to a 44 percent increase in the illegal immigrant population. For those keen on denying jobs to, or deporting, millions of //current// illegal immigrants, this would dramatically increase our woes. And with each generation the number grows larger and larger. Presumably, the grandchild of an "anchor" baby would be an illegal immigrant under the senators' scheme.

And then there is the moral issue. We are talking about children who had no say in their parents' decision-making and/or who can't determine the legal status of their parents. They know no other country than the United States. And Vitter and Rand want to go searching for these children, presumably deny them employment and/or benefits and, I guess, toss them from the country, so that we will dissuade other adults (who exist primarily in Lindsey Graham's imagination) from coming here? It is this sort of harebrained idea, unreasoned and extreme, that raised concerns about Paul's judgment during the campaign.

As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life.

The amendment, ratified more than 140 years ago, grants automatic citizenship to nearly any child born in the U.S.

Following the Civil War, Congress submitted to the states three amendments as part of its Reconstruction program to guarantee equal civil and legal rights to black citizens. The major provision of the 14th amendment was to grant citizenship to “All persons born or naturalized in the United States,” thereby granting citizenship to former slaves. Another equally important provision was the statement that “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to due process of law and equal protection of the law now applied to both the Federal and state governments. On June 16, 1866, the House Joint Resolution proposing the 14th amendment to the Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared, in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and became part of the supreme law of the land.

The Fourteenth Amendment was originally ratified to protect the freedman from the abrogation of his rights by the Southern states. Looking to protect the African American, the amendment made him a citizen and forced the federal government to be responsible for him. The Fourteenth Amendment prohibited the States from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process. The Fourteenth Amendment was also very important much later on, in the 1950s and 1960s. While originally constructed to deal with the rights of freedmen, cases such as [|Brown vs. Board of Education], turned to a quite similar issue its rationales for declaring school segregation unconstitutional. Its interpretation came to be the legal heart of the civil rights movement of the `60s. The fourteenth amendment was arguably the most important of all. It radically changed the definition of the United States Citizen []

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