The New Immigration Debate
Does the Constitution really say that children of illegal immigrants are automatic citizens?


Katrina Trinko

Chavez argues that the position that “subject to the jurisdiction thereof” excludes the children of illegal immigrants “is clearly ahistorical and clearly conflicts with not just the historical debate, but consequent Supreme Court decisions.” Chavez compares today’s illegal immigrants to the gypsies present in this country when the Fourteenth Amendment was debated. Gypsies didn’t pay taxes, yet their children were considered citizens by the legislators.

While the state-citizenship legislation is likely to punt the question of birthright citizenship to the courts, Kobach says the state compact “tees up the issue for Congress.” State compacts must be approved by a majority of congressional lawmakers, although presidential approval is not necessary.

The futures of the initiatives are uncertain, but supporters see tackling the issue as crucial. For Metcalfe, ending birthright citizenship for illegal immigrants’ children is as necessary as securing the border. “The fact remains that we still have people within our borders who are here illegally,” he says. “We as a state have to deal with those individuals as far as jobs they’re taking away from our citizens, and the benefits they’re illegally tapping into.”

Roy Beck, executive director of the immigration-restriction group NumbersUSA, also stresses the importance of changing birthright citizenship in the effort to halt or slow illegal immigration. “It is an incentive,” he says. “It’s a moderate incentive for people to come here illegally, and it’s a major incentive for illegal aliens not to go home.”

Advocates also argue that those who view the issue as too controversial are ignoring the global perspective. Almost no advanced countries, with the exception of Canada, treat children born to non-citizen parents within their borders as automatic citizens.

Krikorian thinks that any push to change eligibility for birthright citizenship must be paired with “pro-immigrant elements,” such as increased English-language education and better bureaucratic processing for immigrants. “I think it’s important for immigration skeptics to make clear that they’re not immigrant skeptics,” he says.

Kobach brushes off concerns that the initiatives aren’t politically viable. “There are a lot of politicians and political advisers who think they know what is politically advantageous to say and what is not,” he acknowledges, but he points out that many supposedly knowledgeable political strategists advocated amnesty in 2004 — and then backed off the proposal when it was clear the public didn’t favor it.

But Aguilar is adamant that the initiatives will “antagonize Latino voters.” And that could have a long-term impact. “It’s pretty clear that if we don’t win 30 to 40 percent of the Latino vote in the next election,” he says, “we’re not going to win back the White House.”

— Katrina Trinko is an NRO staff reporter.