Politicians are calling for the end of Brithright Citizenship for the children of the undocumented. What they don’t tell you is that giving citizenship to nearly everyone born in the U.S. is not a “custom” or a “practice” or even a law. It is part of the Constitution. The 14th Amendment to the United States Constitution gives citizenship to persons born in the United States, with just a few exceptions. It is clear to every scholar outside the far Right that the children of the undocumented are just as much Americans as I am.
But let us imagine, as anti-immigrant politicians and the hate group FAIR do, that I am wrong, and that somehow we have been misinterpreting the 14th Amendment since 1868. What would the implications be?
Well of course, first of all, children born to undocumented parents would be undocumented as well. We could have all guessed that one, right?
And I am not justing talking about children born in the future to undocumented parents. If a decision by the Supreme Court adopted FAIR’s position, every child born to undocumented parents since 1868 would lose their citizenship. Actually, that is the wrong way to say it. Because, according to FAIR, they would have never been citizens to begin with.
But that is not the end of the story. Remember, FAIR is saying that the 14th Amendment never gave the children of the undocumented citizenship. In fact, FAIR goes so far as to claim that an argument can made that any chilld born in the United States to whom a foreign country extends citizenship is similarly disqualified from U.S. birthright citizenship, at least as it is derived from the 14th Amendment. So the children of permanent residents would not be U.S. citizens, nor would even the children of U.S. citizens if one parent was born abroad and his or her native country offered citizenship through the parent’s “blood”, as many countries do.
For some children of at least one U.S. citizen, there may be a statutory path to conferring citizenship, but as my students would tell you, whether you fit within the statutory haven depends of a lot of complex circumstances.
So essentially, everyone living in the United States today with at least one foreign born parent would have to prove that that parent entered the United States legally and that at the time of the child’s birth, all possible citizenship claims by a foreign country had been extinguished.
Now, you might say “Wait a minute Pat, wouldn’t the FAIR interpreation of the 14th Amendment only apply to people born after the Supreme Court makes a decision endorsing it?”. Not necessarily. Remember, this change would not result from a new law being passed, which would be an ex post facto application of the law and therefore unconstitutional. No, this would be what FAIR would call a correct interpretation of the 14th Amendment rendered in a Supreme Court decision. A “clarification” of the 14th Amendment, if you will. Hence, millions of people would be clarified right out of their citizenship.
I’ll give you an example of how this might work.
Let’s assume that Justice Scalia can convince four of his colleagues on the Supreme Court that FAIR’s point of view is correct. And let us say you are a 55 year old man born in the Bronx to parents who emigrated from Italy. Your father came in 1950 and your mother in 1948. When FAIR v. United States is decided in FAIR’s favor, and the current interpretation of the 14th Amendment is overturned, you would have to prove that you were born in the United States and also prove that at the time of your birth both of your parents were in the U.S. legally. Not such an easy thing to do when you recall that many immigration records from before the 1960s have been destroyed or misplaced. If you can’t demonstrate that your parents had legal status, your own citizenship, which you have taken for granted for half a century, is suddenly in question.
Now, even if you can prove
that your parents were here legally, let us also recall that FAIR says that if another country can claim you as a citizen, you may not acquire American citizenship. And Italian law says that if either of your parents was an Italian citizen, you are an Italian. So under FAIR’s analysis, even though you were born in the Bronx to legal residents of the United States, you still wouldn’t be an American citizen though birth.
This is not really that big a problem. Less than half the current population of the United States has an immigrant parent. So at least 150 million of us are safe, right?
Nope.
Because, if your own parents were the children of immigrants, you would have to perform the same analysis on them. So let us say that your grandparents immigrated from Ireland in the late 1890s. If any of them had Irish citizenship or was an undocumented immigrant at the time your parents were born, then your own citizenship as a third generation American would retroactively be called into doubt.
Can you imagine trying to find records from the 1890s on your grandparents or great grandparents immigration statuses?
So a Supreme Court decision finding in favor of the anti-immigrant view that the 14th Amendment has been misinterpreted for all these years would throw our entire country into turmoil.
Elections would be decided by those able to prove a proper pedigree dating back to the Pilgrims, and those of us from more plebian roots would be relegated to some sort of second class non-citizenship. It is unlikely that our former fellow-citizens would try to deport us, but they might not be willing to part with the enhanced political power they gain by disenfranchising half the population.
