Historically, the United States has said as long as you were born here, you are from here — a principle called birthright citizenship. It doesn’t matter who your parents are or what your family history is — as long as you were born on U.S. soil you are a citizen. This was codified in the 14th Amendment, which sought to finally grant citizenship status to African Americans living in the United States rather than leaving them in legal limbo.
A hearing on the House Judiciary Committee’s Subcommittee on Immigration and Border Security last Wednesday explored ways to change this tradition of birthright citizenship pointing to ostensible problems with pregnant women travelling to the U.S. specifically for the purpose of giving birth as well as what the committee sees as substantial public support for moving away from it.
The problem is, moving away from birthright citizenship not only goes against the democratic ethos and traditions of the U.S. but also, as many of the members of Congress on the committee pointed out, presents serious constitutional and policy problems. Even if the constitutional hurdles could be surmounted — which is incredibly doubtful given precedent — moving away from birthright citizenship would be a terrible policy change for the entire country.
Moving away from birthright citizenship would be unconstitutional under most mainstream interpretations of the 14th Amendment, which defines a citizen as "All persons born or naturalized in the United States and subject to the jurisdiction thereof."
We can always amend the Constitution, of course, or enact one of the clever legislative work-arounds, which most of the witnesses at the hearing recommended. About those legal tricks, the best that we can say is that they have not been ruled unconstitutional yet even though the historical consensus is against them.
On a purely practical level, a move away from birthright citizenship would be a logistical nightmare, creating more undocumented people living in the United States and a semi-permanent underclass with greater difficulties moving out of the shadows and trusting the government. We shouldn’t move backward into a complicated bureaucracy that strands people in limbo or forces them to deal with the federal government to prove that their children have the rights of citizens.
Stateless children, who would inevitably result, are at significantly higher risk of being trafficked or having other terrible outcomes because they lack the protection of any citizenship. In Thailand, for example, we see large communities of hill villages not being protected by the privileges of Thai citizenship and thus being vulnerable to all forms of exploitation.
Rather than seeking to increase the number of people who are undocumented in the country, which moving away from birthright citizenship would do, Congress ought to enact broad, fair, and compassionate immigration reform. We need reform that can bring people out of the margins and into the mainstream of society and a balanced and transparent rule of law rather than alienating them from it. That is the only way we can be a true, united community.
Supporting things like a path to citizenship or legal permanent status will help allay the fears of an underclass, without adding people to them. By bringing people into the light, we create a broader tax paying base which can trust law enforcement. It would even cost less and be a smaller expansion of the federal government to open up a plan for normalization than to de-citizen people in the future.
A move away from birthright citizenship would create a massive bureaucracy, with substantially more problems than exist under our current system. In 2011, the Center for American Progress highlighted these problems in greater detail in Less than Citizens, showing how repealing birthright citizenship would require new mothers to prove their citizenship to a federal bureaucracy at the birth of their child and create a new class of children who do not belong in any country.
Rather than waste time on foolish, unconstitutional policy proposals that spitefully penalize, we should work for solutions which help already vulnerable people.
Greg Williams is Communications Assistant for Sojourners.
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