Born in the U.S.A.

by Ramesh Ponnuru
From the Feb. 27, 2006, issue of NR.

One in ten children born in this country has an illegal immigrant for a mother. Every one of those children of illegal immigrants is a U.S. citizen. Birth on American soil automatically qualifies a child for citizenship, whatever his parents’ legal status. (Birth above American soil — on a helicopter, for example — also counts.) Many conservatives want to change the law: to make it so that the children of illegal immigrants will no longer automatically be citizens. It is a misguided, and potentially disastrous, response to the problems created by our immigration policies.

Those problems certainly exist. Granting citizenship to the children of illegal immigrants makes it harder to enforce the immigration laws. If illegal immigrants have children while they’re here, officials have three choices: Deport the whole family, including the young U.S. citizens; deport the adults and break up the family; or do nothing. The last option tends to win out. The critics say that “birthright citizenship” rewards, and thus stimulates, illegal immigration. Illegal immigrants know that they can drastically reduce their chances of being deported if they have children.

The children of illegal immigrants also impose costs on the taxpayer. Steven Camarota of the Center for Immigration Studies, a think tank that favors restrictions on immigration, has studied the impact of illegal immigrants on the federal budget. He finds that while they often pay payroll taxes and do not use welfare or Medicaid disproportionately — both facts run counter to popular wisdom — they nonetheless cost the federal government $10 billion a year. (CIS was also the source for the one-in-ten-children estimate with which this article began.) Some state governments also suffer substantial losses. The Federation for American Immigration Reform, another restrictionist group, estimates that educating the children of illegal immigrants and providing other services cost California $10 billion in 2004.

Most countries don’t offer birthright citizenship. The Republican platform in 1996, during the last high tide of anti-immigration sentiment, called for America to join the majority. President Bush’s men took that line out of subsequent platforms; it didn’t fit with his pro-immigration, compassionate conservatism.

Now Rep. Nathan Deal, a Republican from Georgia, is worrying the White House with a bill to end automatic citizenship for the children of illegal immigrants. He has 81 co-sponsors, all but one of them Republicans.

Deal says that birthright citizenship is a “magnet for illegal immigration.” It is also based, he says, on a (longstanding) “misinterpretation of the Fourteenth Amendment.” The first words of that amendment read, “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.”

Sen. Charles Schumer quoted those words during his questioning of Supreme Court nominee Samuel Alito. He pushed Alito to agree with him that they clearly required citizenship for all children born in America. “Do you agree this is a fairly clear and straightforward provision of the Constitution?” asked the senator. Alito responded that there were active disputes about the meaning of the phrase “subject to the jurisdiction thereof,” some of which could come before the Court, and therefore he declined to answer.

Schumer kept pressing him about the amendment’s “clear language.” “What imaginable argument could there be for a statute that Congress could deny the citizenship to those born in the United States, say, on the grounds that their parents were illegal aliens?” And again: “I simply ask you to give us an interpretation of one of the most direct and clear provisions in the United States Constitution.”

Schumer is wrong. The language isn’t clear and direct. “Subject to the jurisdiction thereof” is a legal term of art, not immediately accessible to laymen. Our instinct is to think that it means “subject to the laws thereof.” We assume that the amendment is saying that anyone who is born here, and can be prosecuted under our laws, is a citizen. But there are problems with that interpretation. For one thing, almost everyone on U.S. territory has to obey U.S. law. The common reading of the amendment thus reduces that qualifier, “and subject to the jurisdiction thereof,” to meaninglessness. Normally, constitutional provisions are interpreted on the assumption that each word matters.

John Eastman, a law professor at Chapman University who also directs the Claremont Institute’s Center for Constitutional Jurisprudence, argues for an alternative reading. He notes that the language of the amendment, proposed in 1866, was designed to provide a constitutional basis for the Civil Rights Act of 1866, which gave citizenship to “all citizens born in the United States, and not subject to any foreign power.” He also points out that Sen. Lyman Trumbull, one of the leading supporters of the Fourteenth Amendment, said that the phrase meant subject to the “complete” jurisdiction of the United States — that is, “not owing allegiance to anybody else.”

Sen. Jacob Howard, who introduced the provision in the Senate, agreed, explaining that children in Indian tribes, though subject to American jurisdiction in some respects, would not qualify for citizenship under the amendment. An amendment to make that clear was rejected as redundant. The Supreme Court initially followed this reading. Thomas Cooley’s influential 19th-century treatise on constitutional law also distinguished between a “qualified and partial jurisdiction” that subjected people to American laws, and the “full and complete jurisdiction” that qualified them for citizenship.

In 1898, however, a divided Supreme Court read birthright citizenship into the amendment — the interpretation that has prevailed ever since. (The Court did not, however, explicitly comment on the status of children born to people who were here illegally.)

Representative Deal and his colleagues are probably right to say that the Court got it wrong: The Constitution, as originally understood, does not demand birthright citizenship. It’s something that Congress ought to be able to bestow — or take away. But whether congressmen should try to take it away, at least for the children of illegal immigrants, is a different question.

For one thing, it is extremely unlikely that Deal’s bill will become law. Compare it with the cause of limits on immigration levels. Such limits are pretty popular with the public, according to polls, but have aroused such fierce opposition among media, political, and business elites that they have not been made into law. Ending birthright citizenship would arouse even fiercer elite opposition, but without public support. In a Rasmussen poll from last November, opponents of birthright citizenship held a mere 49 to 41 percent edge. And that’s with wording favorable to their cause.

Deal does not think that his bill will set back Republicans’ efforts to increase their share of the Hispanic vote. “Those who come to our country the right way, legally, are the very ones, regardless of their national origin, who are asking us to do something about illegal immigration.” It’s true that legal immigrants tell pollsters that they would like curbs on illegal immigration. That doesn’t mean, however, that they will react well to Republican politicians who call for restrictions. Most Hispanics are likely to be outraged if Republicans appear to go after Hispanic children. Suburban moderates will conclude that Republicans are punishing children for the sins of adults — and they won’t be entirely wrong. Many Republican congressmen will oppose Deal’s bill on principle, and others will consider it political poison. The Democrats will attack it at every turn.

But let’s say it somehow manages to pass Congress anyway. And let’s say the president decides that he no longer cares about being seen as a compassionate conservative, and signs the law. It still won’t take effect: It’s a safe bet that the courts won’t allow it, whether or not they should. In other words, even making assumptions that are helpful to the bill’s proponents, the energy spent getting it enacted will be wasted.

If the number of illegal immigrants can be brought down — by, for example, stepping up enforcement at the border and the workplace — the fact that their children are counted as citizens will be less of a problem, too. The problems that Deal and his colleagues attribute to birthright citizenship are more truly the consequences of a failed immigration policy. That policy is what needs to be fixed. As Mark Krikorian, the head of CIS, puts it, “When the bathtub is overflowing, you turn the faucet off before you try to mop up the water.”

If birthright citizenship were ended without that larger policy reform, we would likely wind up with large numbers of families who would stay here for generations but never become citizens. Do we really want to adopt the German model of immigration?

Opposition to birthright citizenship is often found among opponents of the president’s guest-worker proposal. But it is a more natural cause for the supporters of that proposal. If you want to invite workers here temporarily and deport those who overstay their welcome, you had better make sure that any children they have while here aren’t citizens. (If, on the other hand, what you really want is a permanent increase in immigrant labor and are merely selling it as temporary for political reasons, you wouldn’t care.)

Deal’s legislation may be an understandable expression of frustration with the federal government’s failure to control the borders. But ending birthright citizenship is not a crucial piece of immigration reform. It’s a costly distraction from it.

Ramesh Ponnuru is a senior editor of National Review, in whose February 27, 2006, issue this article first appeared.

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