Republican legislators in several different states revealed a new plan to deal with our broken immigration system. Their proposal requires the states to pass laws creating two classes of birth certificates -- based on the immigration status of the parents of the child -- and then to deny citizenship to those children whose parents do not have the right to live here permanently. The idea appears to be to first deny these American-born children state citizenship, and then use this as a springboard to deny them United States citizenship.
It is hard to imagine a more misguided idea coming from a set of legislators who say that they want to protect our country, defend the Constitution, and fix our immigration laws. In pursuing those goals, they seem to have forgotten what American citizenship means. The proposal to redefine citizenship is contrary to our most basic American values. Our country has only one class of citizens because we do not believe in judging people based on the actions of their parents. One hundred and fifty years ago we fought a bloody Civil War to establish that basic principle, and also its corollary: that the states cannot adopt differing – and racially discriminatory -- definitions of who is a citizen of the United States.
The Fourteenth Amendment’s basic notion of fairness and equality puts everyone born in this country on an equal footing in the eyes of the law. It is the most enduring legacy of the Civil War, and our most precious national heritage.
The proposal is also blatantly unconstitutional. The majestic words of the Fourteenth Amendment establish not only that “All persons born or naturalized in the United States” are U.S. citizens, but also that they are citizens “of the State wherein they reside.” The Supreme Court established over one hundred years ago that this language protects not only the children of slaves, but all people, including in that case the children of Chinese immigrants who could not themselves become citizens at the time.
While proponents of the plan may point to the exception in the Fourteenth Amendment for the children of people not “subject to the jurisdiction” of the United States, the Supreme Court decided in that same case that those words serve only to deny citizenship to the children of foreign ambassadors or people born in territory held by hostile forces on U.S. soil. That had been the rule under English common law for hundreds of years, and it makes obvious sense – if undocumented immigrants were not subject to our country’s jurisdiction, then we could not try them in our courts for violating our laws.
Finally, the proposal is very bad policy. Denying citizenship to children born in the United States would do nothing to fix the immigration system. That an undocumented person has a young American child does not establish a legal defense to their being deported -- in fact hundreds of American children each year are forced to either leave with their parents or remain here without their parents who are being deported.
And while people may disagree about whether we have to fix the immigration system by creating a path to citizenship for undocumented immigrants, there should be no disagreement on a far more basic principle: our nation should never not tolerate a system that creates a permanent group of second-class citizens because of what their parents or grandparents have done. That is something every American citizen should be able to understand.