Birthright citizenship in Arizona

[Kafir]

Arizona's Next Immigration Target: Children of Illegals

Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona — and thus American citizens according to the U.S. Constitution — to parents who are not legal U.S. citizens. The law largely is the brainchild of state senator Russell Pearce...

Today, Pearce says, the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," he says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right." He and other Republicans in the red state Arizona point to popular sympathy: 58% of Americans polled by Rasmussen think illegal immigrants whose children are born in the U.S. should not receive citizenship; support for that stance is 76% among Republicans.

I understand the intention; I disagree with the motivation; and I think it's unlikely that such a law would make it past court challenges if it passed.

Apart from the dubious constitutionality, it seems deeply uncharitable to attempt to deny citizenship to children born in the U.S.--usually called "American children"--as a means of controlling their parents' incentives.

[ggeezz]

The 14th amendment was never properly ratified. It would be interesting to see it challenged on those grounds. But I don't see why it's "deeply" uncharitable. We don't grant citizenship to children born in Mexico whose parents obey the law, even if they want it just as much as those who broke the law.

Does the fact that a child happened to be in a certain geographical location at a certain point in time mean we owe it more charity than all the other children in the world?

[dwayner79]

From a purely constitutional point of view, there were debates when the amendment was proposed, and it was clear, only citizens can make a citizen. Anchor babies should not be citizens. Even native Americans were exempt. When a foreign diplomat is here, and has a child, they are not a citizen.

It wasn't until US vs Wong that the courts made it carte blanc. Stupid judiciary.

[ggeezz]

From a purely constitutional point of view, there were debates when the amendment was proposed, and it was clear, only citizens can make a citizen. Anchor babies should not be citizens. Even native Americans were exempt. When a foreign diplomat is here, and has a child, they are not a citizen.

It wasn't until US vs Wong that the courts made it carte blanc. Stupid judiciary.

Since we're headed in this direction . . .

The required number of states agreed (and I argue this didn't even happen fairly) to a change in the nature of their federation (a constitutional amendment). And then years later the federal institution decides to unilaterally, fundamentally change the nature of that agreement. It doesn't matter if they originally agreed or not because they didn't vote on the new meaning.

And more importantly, why would the States tolerate a unilateral, fundamental change to something they voted on in the first place?

[nathan]

From what I understand, geographical citizenship is a necessary condition for bootstrapping a country. How else would you have citizens in your new republic? That function is obviously no longer needed, so I think "natural-born" citizenship should be hereditary. That being said, we do have a long tradition in place.

That Arizona law is STUPID! We should issue birth certificates when people are born. It's just sane documentation. Maybe what we need to grapple with is that we have these concepts of citizenship without a clear definition of how that is determined. Sounds like a case for national ID . . .

[dwayner79]

From a purely constitutional point of view, there were debates when the amendment was proposed, and it was clear, only citizens can make a citizen. Anchor babies should not be citizens. Even native Americans were exempt. When a foreign diplomat is here, and has a child, they are not a citizen.

It wasn't until US vs Wong that the courts made it carte blanc. Stupid judiciary.

Since we're headed in this direction . . .

The required number of states agreed (and I argue this didn't even happen fairly) to a change in the nature of their federation (a constitutional amendment). And then years later the federal institution decides to unilaterally, fundamentally change the nature of that agreement. It doesn't matter if they originally agreed or not because they didn't vote on the new meaning.

And more importantly, why would the States tolerate a unilateral, fundamental change to something they voted on in the first place?

This is why the judiciary is the most powerful (i.e. scary) branch of government... and that is saying something.

The states seem to have just bent over when the SCOTUS says to.

[changa]

One thing missing here is the reason for geographic citizenship rights: slavery.
When you have people picking your cotton (or peaches), who have no rights, the only way to break the cycle is to grant rights to their children, based on nothing but being born within your zone of responsibility. This helped with the aftermath of slavery, and it helps with the indentured servitude of undocumented workers in the same way. Once Arizona makes indentured servitude illegal, then I'll agree they no longer need geographic citizenship rights.

[Kafir]

changa:
Birthright citizenship seems to have been a feature of English common law well before cotton-picking was a major concern. Slavery was an anomaly within the broader Anglo-American tradition of birthright citizenship. And indentured servitude as such is illegal throughout the U.S.

[Kafir]

The 14th amendment was never properly ratified. It would be interesting to see it challenged on those grounds. But I don't see why it's "deeply" uncharitable. We don't grant citizenship to children born in Mexico whose parents obey the law, even if they want it just as much as those who broke the law.

Does the fact that a child happened to be in a certain geographical location at a certain point in time mean we owe it more charity than all the other children in the world?

Perhaps I chose my words poorly--I don't consider my U.S. citizenship, in itself, to make me an object of charity. But I am troubled by the casual acceptance of the idea that some American children should have fewer rights than others, on the basis of their ancestry.

From a purely constitutional point of view, there were debates when the amendment was proposed, and it was clear, only citizens can make a citizen.

I looked into one of those debates to see whether you were right. And first I should say that the congressional debate on this is fascinating, and worth reading in itself:

Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit…. It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society. …

[T]here is a race in contact with this country which, in all characteristics except that of simply making fierce war, is not only our equal, but perhaps our superior. I mean the yellow race; the Mongol race. They outnumber us largely. Of their industry, their skill, and their pertinacity in all worldly affairs, nobody can doubt. … They may pour in their millions upon our Pacific coast in a very short time.

(There is, indeed, no doubt about the pertinacity of the Mongol race. This, by the way, is what nativism sounds like in hindsight.)

Second, it turns out that you are not right:

The proposition before us… relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

(It is possibly worth noting that Conness was himself an Irish immigrant.)

Clearly at least some of the men involved in drafting and ratifying the 14th amendment understood it as, and intended it to be, a declaration of general birthright citizenship. Others intended and interpreted it in more restrictive ways.

But really, I could have guessed that (and had guessed that) from looking at the text itself:

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.

The men who wrote our laws were not stupid: they could easily have said "All persons born of U.S. citizens..." if they had wished to exclude the children of foreigners. Language specifically excluding Indians was proposed, but rejected. I can't resist quoting Sen. Cowan on that subject as well:

I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies.

There is, I think, a level of deliberate ambiguity in the amendment, reflecting the political compromises involved in passing it. This is the sort of mess that the courts are left to clean up.

[ggeezz]

One thing missing here is the reason for geographic citizenship rights: slavery.
When you have people picking your cotton (or peaches), who have no rights, the only way to break the cycle is to grant rights to their children, based on nothing but being born within your zone of responsibility. This helped with the aftermath of slavery, and it helps with the indentured servitude of undocumented workers in the same way. Once Arizona makes indentured servitude illegal, then I'll agree they no longer need geographic citizenship rights.

Slaves are held against their will. Indentured servants enter a contract (i.e., there are two parties, give and take).

Immigrants come to a place on their own. There's no other party involved. They're leaving one place for another that they think is better.

And I don't have a problem with that. That's the heritage of this place, a major factor in making it great. But the law is specifically targeted toward people who are coming here temporarily to give birth so that the child has a right to certain benefits. IMO, it's disingenuous to compare that to indentured servitude or slavery.