By Eric Foner – Aug 17, 2010 9:00 PM ET
For almost 150 years Americans have believed that anyone born here, whatever his or her origins, can be a good citizen. There is no reason to believe the children of illegal immigrants are any different.
Congress should think long and hard before tampering with this essential American principle embodied in the 14th Amendment to the U.S. Constitution. Approved by Congress in 1866 at the outset of Reconstruction and ratified two years later, the amendment establishes the principle of birthright citizenship. With minor exceptions, all persons born in this country are American citizens, whatever the status of their parents.
Republican Lindsey Graham of South Carolina, several of his Senate colleagues and a number of conservative political commentators are now demanding that the amendment be reinterpreted or rewritten so as to exclude the children of illegal immigrants.
Bitter conflicts about who should be an American citizen are hardly new, nor are efforts to exclude those deemed for one reason or another undesirable. The very first naturalization law, enacted in 1790, barred non-white immigrants from ever becoming citizens. This prohibition was lifted for Africans in 1870 but lasted into the mid-20th century for Asians. In 1857, in the Dred Scott decision, Chief Justice Roger B. Taney declared that no black person, free or slave, could be a citizen of the U.S.
The Civil War transformed the debate over citizenship. In a sense, the 14th Amendment wrote into the Constitution the results of the Union’s triumph and the destruction of slavery. It begins by defining as citizens all persons born or naturalized in the U.S. “and subject to the jurisdiction thereof” — language meant to exclude Indians, deemed to be citizens of their respective tribes, and American-born children of foreign diplomats. It goes on to bar states from depriving these citizens of life, liberty or property or denying them the “equal protection of the laws.”
The most important change in the Constitution since the Bill of Rights, the 14th Amendment was intended, first, to establish beyond doubt the citizenship of the 4 million emancipated slaves and to consign Dred Scott to oblivion.
But the Republicans who controlled Congress also had a larger purpose. “It is a singular fact,” the abolitionist Wendell Phillips wrote in 1866, “that, unlike all other nations, this nation has yet a question as to what makes or constitutes a citizen.” The 14th Amendment established the first national definition of citizenship and with it the idea that these citizens enjoyed their rights as part of the American people rather than as members of particular racial or ethnic groups.
In this, it reflected the expansion of national consciousness brought on by the Civil War. The struggle against slavery crystallized the idea of the national government as “the custodian of freedom,” in the words of Massachusetts Senator Charles Sumner. The Black Codes enacted by all-white southern governments soon after the end of the war, which sought to reduce freed people to a condition reminiscent of slavery, reinforced the conviction that the states couldn’t be trusted to respect Americans’ basic rights.
Did Congress intend birthright citizenship to apply to the children of illegal residents? No such group existed in 1866; at the time, just about anyone who wished to enter the U.S. was free to do so. Only later were certain groups singled out for exclusion — prostitutes, polygamists, lunatics, anarchists, and, starting in 1882, the entire population of China.
Not until 1924 was the Border Patrol established, in connection with the law setting nationality quotas for immigration. Initially, its purpose was to keep “undesirable” Europeans — Italians, Greeks, and other southern Europeans — from sneaking across the Mexican border.
Until 1965, there were no numerical limits on immigration from countries in the Western Hemisphere, so the issue of illegal Mexican immigrants, which so alarms today’s critics of the 14th Amendment, didn’t arise.
The closest analogy in 1866 to today’s illegal aliens were immigrants from Asia, forever barred from American citizenship. The Chinese aroused considerable hostility among white Americans, especially on the West Coast, and with an eye on congressional elections, the amendment’s opponents charged that it would make citizens of Chinese children born in this country. The amendment’s authors didn’t retreat in the face of blatant racism. They chose their words carefully; when they wrote “all persons,” they meant it.
The Supreme Court has consistently ruled that birthright citizenship applies to every American-born child and equal protection of the laws to citizens and non-citizens alike. The key cases, decided in the late 19th century, were U.S. v. Wong Kim Ark, which affirmed the citizenship of children born to Chinese immigrants, and Yick Wo v. Hopkins, which overturned a San Francisco law discriminating against Chinese-owned laundries.
The juxtaposition of the 14th Amendment with the bar on the naturalization of Asian immigrants long affected Asian-American life. In the early 20th century, California barred aliens ineligible for citizenship from owning land, so Asian parents transferred title to their homes and farms to their citizen children. Not until World War II was China given a quota (all of 105 persons per year) of immigrants eligible for naturalization. Only with the immigration reform of 1965 did Asians achieve the same status as other immigrants.
The 14th Amendment made the Constitution what it is today: a document that guarantees the equal rights of all Americans and to which individuals and groups who feel they are being denied equality can appeal. As the 19th-century Republican editor George William Curtis wrote, it was part of a process that changed the U.S. government from one “for white men” to one “for mankind.”
To be sure, as far as blacks were concerned the amendment fell into abeyance after the abandonment of Reconstruction. It was reinvigorated in the civil-rights era. Even today’s conservative Supreme Court has used it to expand the rights of aggrieved Americans, as it did in Lawrence v. Texas, which in 2003 overturned a state law criminalizing homosexual acts.
Adopted as part of the effort to purge the nation of the legacy of slavery, birthright citizenship remains an eloquent statement about the nature of our society and a powerful force for immigrant assimilation. In a world where most countries limit access to citizenship via ethnicity, culture or religion, it sets our nation apart.
(Eric Foner, whose forthcoming book, “The Fiery Trial: Abraham Lincoln and American Slavery,” is a professor of history at Columbia University. The opinions expressed are his own.)
To contact the author of this column: Eric Foner at firstname.lastname@example.org
Gannett Washington Bureau • August 17, 2010
Illegal immigration is the focus of debate heading into the November congressional elections.
A big reason for the renewed attention is the passage in April of Arizona immigration enforcement law, which empowers Arizona’s state and local law enforcement personnel to enfore existing federal immigration laws. Arizona’s law is bein challenged in federal court by the Obama administration. Other states are watching the legal battle as they consider adopting similar laws empoering them to enforce existing federal immigration laws.
Supporters and opponents of Arizona’s law, which makes it a state crime to be in the United States illegally, say it underscores the failure of the federal government to enforce the nation’s immigration laws.
What should be done about illegal immigrants already here?
In the Senate, Democratic leaders introduced a plan in April, supported by President Barack Obama, that would increase border security, overhaul the visa system, install a biometric employment verification system to ensure that employers hire legal workers, and establish a path to citizenship for illegal immigrants.
That last point generates the most controversy. Democratic senators and the president have proposed that illegal immigrants could become legal residents and citizens only if they come forward, register with the federal government, pay a fine and any back taxes, undergo a security check and get in line behind the people who have already applied to come here legally. While waiting, they would be allowed to remain in the United States.
Most Republicans and anti-illegal-immigration groups say this amounts to amnesty and rewards people who broke the law to come here. They also say it will encourage more immigrants to enter the U.S. illegally.
What has been done to strengthen border security?
Opponents of the Democrats’ reform plans say they won’t consider allowing illegal immigrants to become legal residents until more is done to secure the border and fight the Mexican drug cartels that smuggle narcotics and people into the United States.
The Obama administration began deploying about 1,200 National Guard troops to the 2,000-mile border in early August. Critics say that is not enough. Sens. John McCain, R-Ariz., a past leader on immigration reform, and Jon Kyl, R-Ariz., the minority whip, have proposed sending 6,000 National Guard troops to the border.
Meanwhile, the Senate in August approved a request by the Obama administration for $600 million in funding for 1,000 new Border Patrol agents, 250 new Immigration and Customs Enforcement agents, unmanned Predator drones to patrol the U.S. side of the border, and other border security measures.
Homeland Security Secretary Janet Napolitano said that spending will add to an unprecedented effort by the federal government to secure the border. The Border Patrol is better staffed than at any time in its 85-year history, with the number of agents doubling from about 10,000 in 2004 to more than 20,000 today. Napolitano also cites statistics showing that the Obama administration has doubled the number of people assigned to Border Enforcement Security Task Forces, tripled the number of ICE intelligence analysts assigned to the Southwest border, and begun screening all southbound rail shipments for illegal weapons, drugs and cash.
Will reform pass?
Few observers believe that Congress will pass an overhaul of the nation’s immigration system during an election year. Instead, it is more likely that Congress may pass piecemeal legislation such as the DREAM Act, which would allow illegal immigrant children to stay in the U.S. and become legal residents if they attend college or serve in the U.S. military.
Number of estimated illegal immigrants in the United States: 10.8 million
Number of illegal immigrants in 2007: 11.8 million
Length of the U.S.-Mexico border: nearly 2,000 miles, along California, Arizona, New Mexico and Texas
www.dhs.gov, Department of Homeland Security
www.ice.gov, U.S. Immigration and Customs Enforcement
, Senate Judiciary Committee, click on “subcommittees” to find the immigration subcommittee.