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Focus on the Children? Senator Graham’s Immigration Solution and the 14th Amendment August 12, 2010

Posted by legalethicsemporium in Immigration, Law, Ethics & Society.
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Another spark has been thrown into the immigration debate of late as Senator Lindsey Graham has proposed to amend the 14th Amendment of the Constitution to delete the provision that provides citizenship for everyone born in this country.   The discussion generated by his controversial position has been further fueled by the release of statistics from the Pew Hispanic Center indicating that there are approximately four million children in the United States whose parents are undocumented immigrants.

There is no doubt that our country has allowed millions of undocumented immigrants to reside in our country and there are statistics to support both the benefit of undocumented workers to our economy and other statistics that demonstrate the burden placed on school systems, hospitals, the criminal justice system and other institutions in our society.

However, the central question in the current debate is whether amending the Constitution to prevent birthright citizenship is a viable solution.  First of all, let’s note that it is a virtual impossibility to amend the Constitution. Initiating an amendment to the Constitution in Congress requires approval from two-thirds of both the House and Senate and then the  proposed  amendment has to be ratified by at least three-fourths of the states.  The last significant amendment occurred about 40 years ago when the voting age was lowered to 18 years old.  This amendment was accomplished in reaction to the Viet Nam War because thousands of young soldiers were being drafted and dying in an unpopular war; they had been old enough to fight, but not to vote.

So, most Constitutional scholars would probably tell you that an amendment is not going to happen.  The fact that politicians and advocacy groups are parsing the wording and historical context of the 14 Amendment (i.e. that it was enacted to assure that the children of freed slaves would be citizens and that we didn’t have any immigration laws in 1868 as opposed it is central to our concept of equality for all) appears to be unproductive rhetoric filling the airwaves and internet.

And, let’s assume for a minute that we could deny birthright citizenship to all babies that have been born to illegal immigrants…..What do we accomplish?  Well, to begin with it appears that we will increase our undocumented population by another four million people.  What if we just say “no more.”  Okay, so we have four million children that will remain citizens and will “no more” prevent undocumented people already here from having children or prevent more people from illegally arriving and/or staying in our country?

These are the questions that remain unanswered except by conjecture and political rhetoric.   Anecdotal evidence and Pew Center statistics suggests that people come here primarily for economic reasons and  generally to improve their living conditions, not necessarily to have children.  It is undisputed by folks on both sides of the issues that our immigration system is in need of major reform—Query whether focusing on denying birthright citizenship and attempting to amend a central provision of our Constitution that provides equality to all is the most productive, efficient, American route to travel.



1. John - August 12, 2010

I don’t think having a conversation about this issue is “unproductive rhetoric”. Positive change can only take place if reasonable people converse about the issue in it’s current totality. The operative word here being current. The current state of our immigration policy is in need of review and revision. Understanding the context of the 14th amendment is germane to any reasoned approach and conversation. It is a fact that it was adopted in vastly different times and for different reasons. Perhaps the amendment should be amended……

legalethicsemporium - August 13, 2010

You may find Michael Gerson’s article in the Washington Post interesting as he responds to those raising the question of historical context and the lack of immigration laws in 1868.

“How could the authors of the 14th Amendment have intended to extend citizenship to the children of illegal immigrants when, in 1868, America had no laws restricting immigration and thus no illegal immigrants? This betrays a thin knowledge of history. In 1868, there were a variety of federal laws that restricted naturalization to whites and established waiting periods for citizenship.

Civil War America did not lack for unpopular immigrants. The 1860 Census found that 13.2 percent of the U.S. population was foreign-born. The figure today is 12.3 percent. During the debate over the 14th Amendment, Sen. Edgar Cowan of Pennsylvania complained that birthright citizenship would include Gypsies, “who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen.” Others objected that the children of Chinese laborers would be covered. Supporters of the 14th Amendment conceded both cases — and defended them. Said Sen. John Conness of California: “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

The Radical Republicans who wrote the 14th Amendment were, in fact, quite radical. They were critical not just of the Confederacy’s view of citizenship but also of the Constitution’s original silence on the issue, which, in their view, betrayed the promise of the Declaration of Independence. Their main goal was expressed in birthright citizenship: to prevent a future majority from stealing the rights of children of any background, as long as they were born in America.”

To read his entire article go to http://www.washingtonpost.com/wp-dyn/content/article/2010/08/12/AR2010081204919.html

2. John - August 14, 2010

That was then, this is now. The unchecked entry of humans into this country, regardless of nationality must be stopped. Clouding the issue with an age old context is counterproductive to solving the problem. It’s an important historical context and helpful to understand what happened and why, but must be understood as the forces that drove the amendment at that time. The amendment should stand, but it must be amended to reflect the realities of life in this country today. To do anything less just kicks the problem down the road and continues to aggravate a large segment of our society that believes we are a nation of laws and that they should be obeyed and enforced. This segment of society is also justified in its outrage that lawbreakers are allowed to enjoy the opportunities that this country offers when law abiding productive potential citizens wait as they should to enter the country legally. It’s a matter of fairness. How would you feel if you were on that waiting list and there was a continuous stream of people who basically ignore your rights and butt in line?

legalethicsemporium - August 14, 2010

Okay, but really what does this have to do with innocent children who have no control over where they are born and our intrinsic, historical priority of equality? Just because a “segment” of society is outraged, doesn’t mean that it is right and the Constitution should be amended. There are many other proposals for overhauling the immigration system and increasing enforcement of laws that are already on the books—We just need the Federal government to act accordingly.

3. John - August 16, 2010

The parents have control over where they are and when they decide to have offspring. If the parents are here legally the child should be given at least the status of the parent until the parents become citizens. The child’s equality would not be in doubt given the legal circumstances of the families immigration status.
The line between legal and illegal is defined clearly in the law. When the parents make a conscious choice to ignore our laws there should be consequences severe enough to deter this type of behavior. Denying automatic citizenship to these children may seem severe but why should this illegal family benefit from breaking our laws?

We agree that the Feds need to act.

4. John - August 23, 2010

Here’s another idea to solve the immigration issue. Stop the Wars and Nation building. http://www.fas.org/sgp/crs/natsec/RL33110.pdf. This is the latest from the Congressional Research Service. Over 10 Billion a month!
We should use this money (borrowed) to rebuild our country. If you borrow money you would certainly not use it to remodel your neighbors home! Our infrastructure is in a severe state of decline and the States are facing budget deficits of their own. The money should be used to create a civilian jobs corp to address this decline (jobs!) and to secure our borders and solve the immigration issue once and for all (more jobs!). These issues if ignored will surely
degrade our National security both internal and external.

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