Monday, August 16, 2010

Qualifying Birthright Citizenship

They're called "anchor babies:" children born in the United States to parents who are here illegally. Simply put, anchor babies help protect their parents from being deported.

Currently, about 8% of all births in the US are to illegal immigrants. In 2008, when the latest study took place, that amounted to approximately 340,000 anchor babies born to people illegally residing in this country. According to the Pew Hispanic Center, 4 million legal children live in the United States with undocumented parents.

Amidst the fallout from Arizona's infamous SB-1070 which opponents - rightfully, in my view - believe promotes racial profiling, some advocates of controlling illegal immigration have picked up a dusty old ball which has been bouncing around the schoolyard of discarded ideas: changing the citizenship clause in our Constitution. Wouldn't one of the easiest ways of staunching the flow of illegal immigrants to America be to remove one of their key incentives for coming here in the first place?

Framing the Debate

Our United States Constitution’s 14th Amendment currently grants citizenship automatically to anyone born here. Opponents of illegal immigration believe - rightfully, in my view - that illegals are misappropriating a provision intended to benefit Americans, and we're currently handing law breakers a blank check on a silver platter. Republican senators Mitch McConnell and Lindsey Graham, among others, have called for hearings to explore the issue, with a view towards limiting citizenship by amending the 14th Amendment.

Should a person be automatically granted US citizenship simply by being born here? That current privilege, called “birthright citizenship,” has generally been considered a fundamental characteristic of procreation in America, one of the last First World countries to maintain the principle of birthright citizenship. Conventional interpretation of the amendment holds that Americans can be assured that their children can share in all the rights of citizenship. However, the concept could be subject to unprecedented restrictions in the effort to push back the tide of illegal immigration.

Former presidential candidate Mike Huckabee has gone on record that limiting the 14th Amendment would penalize kids for mistakes their parents have made. Other opponents hypothesize that removing something as simple as birthright citizenship will create a bureaucratic nightmare, and could even lead to a national ID system as the government wrestles with ways to identify who can and can't receive birthright citizenship.

Frankly, considering the appalling lack of political will to fix our illegal immigration situation by simply enforcing the rules already on the books, changing an amendment risks being a futile exercise. You’ll recall from your high school government classes that reworking the US Constitution requires considerable effort, and rightfully so. The document which undergirds our entire legal system should not be trifled with. So the very idea of using an amendment to the Constitution to address our problems with illegal immigration should give everyone in this debate pause.

But not too long of a pause; otherwise, we’ll be demonstrating the same political inactivity which has contributed to the mess we’re in.

Can We Protect Our Laws From Abuse?

If you believe amending the Constitution represents an overreaction to the illegal immigration dilemma, your concern has some validity. Since we’re talking about the 14th Amendment in particular, we need to recognize the stunning privilege it grants people born here. Birthright citizenship holds immense power, and those who want to leave it alone can’t be simply dismissed as intransigent.

However, just as birthright citizenship cannot be taken lightly, don’t we need to protect it when it gets abused? Could crafters of the amendment, working in the heady days at the end of the Civil War, ever have imagined how many people would violate our nation’s borders to plant their seed here? Does birthright citizenship grant an unfair advantage to Hispanics, who can migrate here simply by traveling up the continent? Asians, Africans, and Europeans who might consider coming here illegally have to first figure out how to cross an ocean and pass through a port before they can set foot inside an American hospital. By denying birthright citizenship to the children of illegals, do we strengthen the integrity of our immigration laws and restore some equity to our immigration policies?

America has flourished from various stages of relatively controlled immigration; indeed, the unprecedented flow of Europeans to our shores after the Civil War profoundly re-shaped our still-developing country.

But haven’t times changed since then? While we still welcome all emigres who come to the United States legally, why do we also remain responsible for people who come here by breaking our laws? Jewish law calls for the Hebrew faithful to care for the gentiles and sojourners in their midst, but to what extent are people who breach our borders to be equated with the nomadic cultures and conquered societies of Biblical times?

And as for the national ID argument, isn't that just a red herring? We already have social security cards based on birth certificates, which should be enough to determine the citizenship status of any parent.

Change Isn't Easy

Not that the process for determining who gets birthright citizenship will be easy. It does appear as though some significant details will need to be ironed out before this idea could be practical. For example,

  • Even if an amendment of this magnitude could be ratified, how would it be enforced? Would enforcement be on a state level, as it basically is now; or on the federal level?
  • Would citizenship be required of both parents, or just the mother, or one of the two?
  • If only one of the parents needed to be a citizen, and that parent was the father, how does he prove he's the father?
  • Can we afford all of the DNA testing which would be required to prove patrilineal citizenship?

At first blush, even Mike Huckabee's concern about penalizing children for the sins of their parents sounds like a plausible reason to keep things as they are. However, do two wrongs make a right? If we're talking about equity here, how do people who obey our immigration laws benefit when law breakers get benefits they're not entitled to?

We Need to Talk About This

In one definitive action, changing the 14th Amendment could remove from the illegal immigration debate one of its key facilitators. Our country's immigration process could be made more equitable, and the messy conundrum of deporting the children of illegal immigrants could evaporate within a few years.

But real life is rarely that simple, is it? What might the chances be that our politicians could craft revisions to birthright citizenship that solve the myriad contingencies that reside in modern procreation? Is an 8% birthrate to illegals a percentage our country can live with, considering our other problems that need fixing? Would simply enforcing our current immigration laws end up being more effective in terms of time and cost?

These questions, however, should not shroud the 14th Amendment in imperviousness. Our Constitution is a remarkable document, but it is not perfect. Shouldn't we be able to revisit the parts of it that fail to keep up with our country's evolution in a rapidly-changing world?

Personally, I think the 14th Amendment should be clarified to specify that children born in the United States are only granted citizenship if their mother is a legal resident. But I have no illusions that getting there from where we are today will be a piece of cake.

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