09/21/2010 09:23 am ET Updated May 25, 2011

The 14th Amendment and the Essential Question

I know, you're wondering, "Which essential question?" Well there are a lot of ways to ask it, some delicate, some not.

"Who's in, and who's out?"

"Who's one of us, and why?"

Or, finally, "Who gets to be an American?"

As the debate over immigration drags on without a settlement or even a debate over a settlement in sight, it might have been predictable that we would come to the point where a constitutional amendment is casually dropped into the conversation. The 14th Amendment to the US Constitution 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."

Slaves were not citizens. The infamous Dred Scott decision said so, when a 7-2 Supreme Court majority decided that neither Scott nor any other African American could claim citizenship in the United States of America. After the Civil War, the 14th Amendment took the citizenship question off the table. The old idea of citizenship, in which citizenship of an individual state and the national polity were two different things, was swept away by the constitutional amendments and indeed, the war itself.

Right now, virtually anyone born in the United States is a citizen of the United States. It's simple, straightforward, and has worked for 150 years. The years after the Civil War saw one of the largest migrations in human history break on the shores of the United States. Millions of Europeans headed west across the Atlantic and transformed the United States in the half century between 1870 and 1920. You didn't hear much about anchor babies then.

Today's debates over immigration -- who, how much, under what circumstances? -- are all implicated by the 14th Amendment. It is less talked about, but the 14th Amendment didn't end with Section 1. It continues by overturning the original constitutional provision that dictates the formula for congressional apportionment based on counting slaves as 3/5 of a human being. Section 2 says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Our guests on this week's Destination Casa Blanca had a fundamental disagreement over the future of birthright citizenship. Angela Kelley of the Center for American Progress called the idea of repealing the 14th Amendment a "radical" notion over and over through the hour. Dan Stein of the Federation for American Immigration Reform said that on the contrary, rewarding the lawbreaking of families who've come to America illegally by giving them a shot at legal status through their citizen children made no sense.

Diana Sen, president of the Hispanic National Bar Association countered that the timeline for a citizen infant born to undocumented children was so long that it was extremely unlikely families were strategizing in this way. Mario Lopez of the Hispanic Leadership Fund said it made no sense to change the rules now, and pointed out that the bar was set so high for constitutional amendments that proposing an end to birthright citizenship had no practical effect except to inflame the immigration debate.

Let's be clear: Families out of status with minor children who are citizens are still subject to deportation. For all the legendary value of an "anchor baby," the act of drawing your first breath on earth on American soil doesn't end anything... it's only the beginning of what can be a very long process for a family. Ending birthright citizenship would do little to curtail illegal immigration.

It's estimated by a Pew Center study that 8 percent of the babies born in America in 2008 were born to non-citizens (363 thousand of 4 million total births). Diana Sen pointed out that making these children illegal aliens would compound the existing problem rather than fixing it.

There was speculation about the end of birthright citizenship during the 1990s, but it never became a mainstream part of the debate. But this edition of the immigration debate comes at a time of extreme anxiety about unemployment, and the future of the American Dream. Illegal immigration is down now. Undocumented workers are addressing the problem by deporting themselves as work dries up in hard-pressed communities.

It will be interesting to see whether an old idea -- that anyone born here is part of the United States by right -- will survive the bruising arguments over who belongs, who's in and who's out. The Obama administration had promised publicly and through quiet back channels that immigration reform was an important policy objective. With the president likely facing a far more Republican House and Senate in 2011, and a far more cautious Democratic caucus, the politics of immigration reform are about to become very tricky.

But the movement of issues like birthright citizenship, and questions about apportionment not by raw numbers but the number of citizens in a district from the margins to the red hot center may be a sign that the life of this debate may already be out of President Obama's hands.

Watch the excerpts from the Destination Casa Blanca debate over the 14th Amendment on the DCB website,

Click here to watch more video highlights.