In the final years of the Civil War and the subsequent Reconstruction Era, a debate was raging in Congress in regard to the rights of former slaves newly freed by the 1863 Emancipation Proclamation. The adoption of the 13th Amendment, which formally abolished slavery, two years later only added fuel to the fire.
Because the freed slaves would now be fully counted for determining congressional representation, as opposed to the three-fifths clause set forth in the original Constitution, southern states would be positioned to drastically increase their power in the House of Representatives, despite the fact that the newly-freed slaves could not vote. Republicans were disconcerted and immediately began searching for ways to offset this advantage.
Three tumultuous years followed before Republicans found — and instituted — their fix: The 14th Amendment, which provided instructions for how to apportion representatives in Congress. It also provided additional protections for the former slaves’ civil rights. It’s the latter of these provisions that gives the amendment its legacy today. The opening sentence of Section 1 of the 14th Amendment states: “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.”
While the aforementioned clause was designed to grant citizenship to former slaves, it also made a citizen of any individual born on U.S. soil thereafter and it continues to do so today.
The birthright citizenship clause was extremely important and highly beneficial when the U.S. was trying to grow its population and increase its prosperity. But the country is no longer looking to expand so drastically, and the clause is too often abused to justify its continued existence. As such, it’s time to bring an end to birthright citizenship.
The calls to end birthright citizenship, at least to some extent, are not new and have appeared within both political parties. President Donald Trump has flirted with the idea on numerous occasions throughout his presidency. Former Senate Majority Leader U.S. Sen. Harry Reid (D-Nev.) harshly criticized birthright citizenship and introduced legislation to limit it in 1993. Countless others have supported the idea at one time or another.
After rising throughout the 1980s, 1990s, and 2000s, the number of babies born to undocumented immigrants in the U.S. reached a peak in 2007, with about 390,000 babies born, according to the Pew Research Center. While the number has since declined, it is still strikingly high. As of 2016, the latest year for which information is available, over 200,000 babies are born to undocumented immigrants each year. In 2016, 3.9 million babies were born in the U.S. overall.
Despite the foreign citizenship and undocumented status of the parent or parents, the U.S. automatically bestows citizenship upon these children at birth. The same is also true of children born to tourists and other individuals who are present in the U.S. legally but temporarily.
The latter of these cases was in the news last month when the Trump Administration imposed new visa rules for pregnant women in an effort to decrease so-called “birth tourism,” in which pregnant women travel to the U.S. with the sole purpose of giving birth and guaranteeing U.S. citizenship for their children.
The scale of birth tourism is unclear, but the Centers for Disease Control and Prevention estimated that 9,300 children were born in the U.S. in 2017 to mothers who live overseas.
Legal scholars, judges and lawyers have long questioned whether the 14th Amendment should be read to allow such a permissive citizenship policy. Nevertheless, despite no input from either today’s Congress or the American public, the practice of granting citizenship to children born under the circumstances outlined above has become the law of the land.
The Supreme Court was able to interpret the policy in the late 1890s when it heard United States v. Wong Kim Ark. The Court found that an individual born on U.S. turf was considered a citizen even if his parents were not.
But this is unlikely what the drafters of the 14th Amendment sought out to achieve, nor is it likely what the Founding Fathers would have wanted. While the Founders never explicitly spelled out what citizenship meant, they most certainly had an idea.
The Founders and drafters of the Constitution carried two principles from British common law over to the new nation. The first was jus soli, a Latin term meaning “right of the soil.” In general, if one was born on British soil, then one was a British citizen. The second and most important was jus sanguinis, or “right of the blood,” which made citizenship hereditary — parents passed it down to their children. Taken together, the Founders almost certainly would not have permitted the free-wheeling definition of citizenship in use today. Nor should we.
Just over 30 of the world’s 194 countries grant automatic citizenship to children born to undocumented immigrants. Of ones on the United Nation’s list of developed economies, the U.S. and Canada are the only countries that do so. Many nations used to — Australia, France and the United Kingdom among others — but have since revoked those policies. Unfortunately for me, that means I couldn’t fly to France with my wife in order to have a child guaranteed French citizenship. My imaginary child would, and should, be a U.S. citizen, but he wouldn’t, and shouldn’t, be a French citizen.
Many of the proponents of birthright citizenship I’ve spoken to often speak of it as an enlightened principle that allows the children of well-meaning immigrants who come to the U.S. in search of a better life to become citizens. Michael Fix, a senior fellow at the Migration Policy Institute, claims that repealing birthright citizenship would “create a self-perpetuating class that would be excluded from social membership for generations.”
The first of those arguments is simply wrong. Undocumented immigrants travelling to the U.S. solely to give birth is not enlightened — it is malfeasance. But thousands of individuals every year will continue taking advantage of our laws until we actually come to our senses and change them.
It’s time to end birthright citizenship once and for all. The clause in the 14th Amendment that established it is over-abused, misinterpreted and one of the most illogical laws in our otherwise brilliant Constitution. Other countries have realized these simple facts. It’s about time we do the same.
Wesley Shirola is a Weinberg junior. He can be contacted at [email protected] If you would like to respond publicly to this column, send a Letter to the Editor to [email protected] The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.