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Citizenship in the Balance: How Anti-Immigrant Activists Twist the Facts, Ignore History, and Flout the Constitution

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Citizenship in the Balance: How Anti-Immigrant Activists Twist the Facts, Ignore History, and Flout the Constitution IN FOCUS Citizenship in the Balance: How Anti-Immigrant Activists Twist the Facts, Ignore History, and Flout the Constitution A project of People For the American Way and People For the American Way Foundation WWW.PFAW.ORG WWW.RIGHTWINGWATCH.ORG Introduction taken aim at constitutional citizenship. In Congress and state legislatures across the country, constitutional citizenship is America’s broken immigration system requires serious, under attack by right-wing leaders and organizations who bipartisan, and comprehensive reform, but a burgeoning want to either redefine or repeal the 14th Amendment’s movement among anti-immigrant hardliners threatens to Citizenship Clause. jeopardize efforts to fix immigration policies and endanger the rights guaranteed by the United States Constitution. Opponents of constitutional citizenship have distorted history Anti-immigrant activists have devised an extreme agenda and constitutional law in order to promote their extreme to roll back a fundamental constitutional protection: the agenda and paint the children of undocumented immigrants right to citizenship for all people born on American soil and as criminals responsible for the country’s social and economic required to abide by the country’s laws. A growing number problems. Instead of working towards meaningful immigration of Republican politicians and right-wing media personalities reform, the anti-immigrant lobby is preparing an attack on the have embraced the radical goal of redefining citizenship by Constitution to inflame the debate and demonize immigrant peddling false and debunked smears against immigrants and families. While most would agree that the country’s misrepresenting the Constitution and its drafters. immigration laws need fixing, scapegoating children and defiling the Constitution are hardly effective ways to repair Politicians on both the state and federal level are attacking America’s immigration system. the citizenship status of U.S.-born children of undocumented immigrants under the guise of toughening immigration laws Distorting American History and restoring the “original” meaning of the Constitution. But anti-immigrant activists and their allies offer nothing more Anti-immigrant groups like the Federation for American than legally baseless proposals, unhelpful and provocative Immigration Reform (FAIR) maintain that they simply want rhetoric, and distortions of history in their attempts to sink “Congress to adopt legislation clarifying the meaning of the immigration reform, chip away at core American values, and 14th Amendment.” But by calling for “clarification,” FAIR gravely undermine the Constitution. and its allies imply that the meaning of the 14th Amendment’s Citizenship Clause is vague or uncertain. Some politicians Citizenship and the working to retract constitutional citizenship have even claimed, despite extensive historical evidence to the contrary, Constitution that they want to return to what they call the amendment’s “original” interpretation. The 14th Amendment’s Citizenship Clause declares that “all persons born or naturalized” in the United States are For example, Rep. Gary Miller (R-CA), the sponsor of a bill considered citizens: to end constitutional citizenship by statute, said, “It is unfair to grant birthright citizenship to children of illegal immigrants All persons born or naturalized in the United because it undermines the intention of the 14th Amendment.” States and subject to the jurisdiction thereof, are Kansas Secretary of State Kris Kobach, who prior to his citizens of the United States and of the State election was an anti-immigrant activist and the force behind wherein they reside. Arizona’s draconian anti-immigrant law, SB-1070, claimed that he is working to “restore the original meaning of the As early as 1898, the Supreme Court, interpreting this clause, Fourteenth Amendment” by revoking birthright citizenship. flatly declared inUnited States v. Wong Kim Ark that the 14th Amendment affirmed the right of citizenship by birthplace, or Many politicians claim that the 14th Amendment was only jus soli. The Court ruled that “every person born in the United meant to apply to freed slaves. Sen. David Vitter (R-LA), a States, and subject to the jurisdiction thereof, becomes at once leading opponent of constitutional citizenship in the Senate, a citizen of the United States, and needs no naturalization,” said that the authors of the Citizenship Clause “drafted the and that the 14th Amendment “has conferred no authority 14th Amendment to address slavery, not immigration.” Arizona upon Congress to restrict the effect of birth, declared by the State Senator Russell Pearce asserted that undocumented Constitution to constitute a sufficient and complete right immigrants “hijacked” the 14th Amendment, and that “the to citizenship.” Indeed, contemporaneous records from the amendment had to do with African-Americans; it had nothing passage of the 14th Amendment elucidate its intent to cover to do with aliens.” the children of immigrants. Arizona State Representative John Kavanagh alleged that Despite the clear language and history of the 14th Amendment “if you go back to the original intent of the drafters...it was and the Supreme Court’s confirmation of its guarantee of never intended to bestow citizenship upon aliens,” and later citizenship by birthplace, anti-immigrant activists have now proposed legislation that “would require at least one parent to WWW.PFAW.ORG WWW.RIGHTWINGWATCH.ORG 2 RIGHT WING WATCH IN FOCUS prove either citizenship or legal residency in order for the child persons born in the United States who are foreigners, to be recognized as a citizen of Arizona and, by extension, the aliens, who belong to the families of ambassadors or United States.” Oklahoma State Representative Randy Terrill foreign ministers accredited to the Government of said that he is “not seeking to amend the Constitution or the United States, but will include every other class change the 14th Amendment. In fact, we are merely seeking of persons. to restore its original intent.” By deleting Howard’s reference to “aliens, who belong to the But make no mistake, birthright citizenship is settled law and families of ambassadors or foreign ministers accredited to the original intent of the drafters. the Government of the United States,” Smith conveniently ignored the immunity exception that is clear in both Howard’s According to constitutional scholar and former Senate statement and the language of the 14th Amendment. Republican legal aide James Ho, “the text of the Citizenship Clause plainly guarantees birthright citizenship to the U.S.- Howard’s colleague Sen. John Conness of California agreed born children of all persons subject to U.S sovereign authority during the Senate debate that the children of foreigners born and laws” and “the clause thus covers the vast majority of on U.S. soil would become citizens under the amendment: lawful and unlawful aliens.” The Citizenship Clause does not cover people who are not “subject to the jurisdiction” of the The proposition before us, I will say, Mr. President, United States, which means people immune from U.S. laws. relates simply in that respect to the children begotten Such categories include the children of foreign diplomats and of Chinese parents in California, and it is proposed to enemy soldiers on U.S. soil. Undocumented immigrants, on declare that they shall be citizens. We have declared the other hand, are not immune from the country’s laws and that by law; now it is proposed to incorporate the therefore subject to their jurisdiction. same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for Daniel Farber of Berkeley Law School, the co-founder of the proposition to declare that the children of all Constitutional Commentary, told the American Independent: parentage whatever, born in California, should be “It also says in the Constitution the president must be over regarded and treated as citizens of the United States, the age of 35; you don’t need the Supreme Court to tell you entitled to equal civil rights with other citizens of the what that means. I usually am not this emphatic about what United States. I think the answer is because constitutional law has a lot of gray areas, but I do feel this one is pretty cut and dry. The 14th … Amendment is clear about who is a citizen.” We are entirely ready to accept the provision proposed Rep. Lamar Smith (R-TX), the chairman of the House in this constitutional amendment, that the children Judiciary Committee and a leading opponent of constitutional born here of Mongolian parents shall be declared by citizenship, manipulatively edited the words of the one of the the Constitution of the United Sates to be entitled amendment’s drafters, Sen. Jacob Howard, in order to back to civil rights and to equal protection before the law up his argument against constitutional citizenship. Smith with others. claimed, “During the debate on the 14th Amendment in 1866, a senator who helped draft the amendment said it would ‘not Ho calls attention to those who voted against ratifying the of course include persons born in the United States who are 14th Amendment, who also recognized that the amendment foreigners.’” provided birthright citizenship. Sen. Edgar Cowan of Pennsylvania criticized the amendment, saying that it would But Howard, a senator from Michigan, made clear elsewhere grant citizenship to those who “owe [the U.S.] no allegiance that “a citizen of the United States is held by the courts to be [and] who pretend to owe none,” including those who a person who was born within the limits of the United States “trespass.” Cowan even lamented that the amendment would and subject to their laws.” His full statement shows that the compel states to give citizenship to the children of “Gypsies” only people not subject to U.S. jurisdiction are foreigners with in Pennsylvania and the Chinese in California. special immunities: Contemporary proponents and detractors alike clearly This amendment which I have offered is simply recognized that the rights inherent in the 14th Amendment’s declaratory of what I regard as the law of the land Citizenship Clause were not limited to African Americans.
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