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Parents, Children, and Citizenship by Birth

Posted: 08/19/10 03:29 AM ET

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona's new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

For centuries, James Anaya's family lived off land that became part of southern New Mexico. Some of them relocated to Mexico after the United States acquired the territory in 1853. His grandfather, born in Mexico, returned to his ancestral homeland after statehood and his wife to be -- James's grandmother -- followed. Both of them entered the United States illegally. Theoretically they could have immigrated legally, because there was no maximum quota on immigration from Mexico until 1965. However, while penniless Europeans were admitted, impoverished Mexicans were routinely turned back. James's grandparents just moved without any papers and their children, born in the United States, became citizens at birth.

Gabriel Chin's grandfather immigrated from Guangxiao, China in the period (1882-1943) when the Chinese Exclusion Act prohibited the immigration of racial Chinese. Like many other Chinese men admitted as paper sons, he entered California on the false claim that he was the Chinese-born child of a United States citizen and thus a citizen himself.

Paul Finkelman's Polish-born grandfather feared being turned back at Ellis Island because of his poor eyesight. At the time people with glaucoma were not allowed into the United States. His grandfather did not have glaucoma, but he did not understand the rules. Immigration inspectors carefully excluded people who they feared could not work, so he took no chances and entered by a clandestine trek through Canada, later regularizing his status. His other grandfather lied about his age at Ellis Island -- grounds for deportation -- so that he could work when he landed. He later gained his citizenship when he was drafted in World War I, even though he was actually too young to be drafted. The lie brought him into the work force and then citizenship, but it was all in violation of immigration laws.

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem -- if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either. This raises the spectre of multi-generational groups who are citizens of no nation yet know no other land than the United States. In addition, intentionally or not, most people to be denied citizenship would be of Hispanic ancestry. After centuries of effort to remove race from American law, the overwhelming racial impact would inevitably be divisive.

As legal scholars, we believe it would be a mistake to repudiate the long tradition of birthright citizenship in the United States, as number of Republican leaders want to do. Before the Civil War all white people born in the United States were citizens at birth, even if their parents were aliens. This tradition predated the American Revolution. In fact, some of the complaints against King George III centered on his refusal to allow for rapid naturalization of immigrants to the colonies.

In the Dred Scott case, in 1857, the Supreme Court held that blacks, even if free, could never be U.S. citizens. After the Civil War the Republican leaders in Congress successfully sponsored the Fourteenth Amendment, which guaranteed citizenship for all children born in the United States, except those of visiting diplomats and soldiers in hostile occupation. In addition to ending slavery, and preserving the Union, this is one of the great legacies of early Republican Party -- the Party of Lincoln. Ironically, and sadly, Republican leaders like John McCain now want to betray their own history.

One argument for denial of citizenship to the children of undocumented immigrants turns out to be mistaken: Non-citizen parents cannot bootstrap themselves in to legal residency by having a child in the United States and then having that child sponsor them for visas. Federal law prohibits citizens under 21 from sponsoring parents for immigration benefits.

It is also incorrect to think that the Fourteenth Amendment's citizenship clause did not apply to "illegal aliens." The Amendment was intended to grant citizenship to descendants of enslaved persons brought here illegally after Congress prohibited the slave trade in 1808. The Amendment was also designed to take politics out of citizenship by ensuring that no state or the national government could ever do what the Supreme Court had done in the Dred Scott case. Dred Scott declared that blacks even free blacks could never be citizens, even though they and their parents and grandparents were born in the United States.

Further, punishing children for parental misconduct is un-American. The Constitution itself prohibits the traditional English punishment for treason of "corruption of blood" -- treating children as if they had no parents for purposes of inheritance and rights. On the same principle, it is one thing to punish adults for their own misconduct in crossing the border illegally, but quite another to punish children who are entirely innocent. In the United States, responsibility and liability for punishment are personal.

In addition, restricting citizenship means that courts or bureaucrats will judge the citizenship of millions of people born in the United States. As recent news articles about mistaken deportations of U.S. citizens shows, inevitably there will be errors, and people who are in fact citizens will be unable to satisfy judges or bureaucrats of the truth of events that took place long ago. The simple and clear rule of the Founders in 1787 and the Framers of the Fourteenth Amendment limited the risk of tragic mistakes.

But the most fundamental reason the proposals are misguided is that denial of citizenship is unnecessary. If you know Americans of Chinese, Canadian, Brazilian, Mexican, Eastern European, Italian, Greek, or Irish ancestry, or any other, for that matter, ask around. You may be surprised at how many descendants of unauthorized immigrants turn up, people who seem indistinguishable from any other doctor or student, mechanic or professor. Hispanic immigrants are following the same pattern as other immigrant groups of increasing English speaking ability and family income as generations pass.

In the past, America has come to regret policies denying citizenship to particular groups, policies like Dred Scott, and the racial tests for naturalized citizenship in force from 1790 to 1952. These policies always rested on the idea that some immigrants -- almost always non-white -- would not make good citizens. Doubt about the ability of the United States to take in and benefit from every branch of the human family has always been proved wrong, and, we have no doubt, will be here as well.


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Anaya, Regents Professor at the University of Arizona Rogers College of Law, a graduate of Harvard Law School, is a specialist in human rights law [jim.anaya@law.arizona.edu]. Chin, Chester H. Smith Professor of Law at the University of Arizona Rogers College of Law, a graduate of Michigan and Yale law schools, is a specialist in criminal and immigration law [ jack.chin@law.arizona.edu]. Finkelman, President William McKinley Distinguished Professor of Law at Albany Law School, who received his Ph.D. from the University of Chicago, is a legal historian and a specialist in Constitutional law [paul.finkelman@albanylaw.edu].