Immigration Reform: Birthright Citizenship Under Scrutiny


By Frank Lewis on January 15, 2011, 7:44 am

The problem facing those who’d like to see citizenship requirements toughened up is, of course, the 14th Amendment to the Constitution. It states that “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.”

Attack On The 14th Amendment

For the time being, immigration-reform advocates have dropped thoughts of amending the Constitution. Rather, according to the New York Times, “lawmakers are considering . . . a move to create two kinds of birth certificates in their states, one for the children of citizens and another for the children of illegal immigrants.” According to the story, legislators from Arizona and four other states unveiled legislation that they hope will force federal courts to consider whether the 14th Amendment truly grants citizenship to U.S.-born babies of illegal immigrants.

Laws Will Stand Up To Scrutiny

Some conservatives contend that the issue is unsettled. Kris Kobach, the incoming secretary of state in Kansas and a law professor at the University of Missouri-Kansas City, argued that the approach the states were planning would hold up to scrutiny. “I can’t really say much more without showing my hand, but, yes, I am confident that the law will stand up in court,” he said referring to the laws many states are considering now. The draft model bill, released at a news conference at the National Press Club in Washington, would define who is and isn’t a citizen of a particular state.

But the Opposition Is Convincing

Many legal scholars are doubtful. “This is political theater, not a serious effort to create a legal test,” said Gabriel J. Chin, a law professor at the University of Arizona, to the NYT. “It strikes me as unwise, un-American and unconstitutional.” Garrett Epps, an expert on the 14th Amendment and a law professor at the University of Baltimore School of Law, said the state legislators either don’t understand the amendment or are purposely misstating its intent. Epps said illegal immigrants clearly fall under the jurisdiction of the U.S. government and state governments because they can be sued, arrested, charged and incarcerated for violating federal and state laws, he said.





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