“Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Citizenship clause of the 14th Amendment to the United States Constitution, ratified 1868)
This key amendment to the U.S. Constitution was passed as one of the three “Reconstruction” amendments in the wake of the Civil War, and was designed to disrupt the plans of former slave owners to deny effective citizenship to freed slaves and other people they didn’t like.
Now it is in the cross hairs of a frightening Republican campaign.
Senate Minority Leader Mitch McConnell, R-Ky., has joined Sens. John Kyl, R-Ariz., and Lindsey Graham, R-S.C., in telegraphing a possible attempt to pass a constitutional amendment to change the 14th Amendment to read that children of undocumented immigrants born in the United States shall not have automatic United States citizenship. There are thought to be about 4 million children under 18 who were born in the United States and thus are U.S. citizens.
But McConnell, Graham, Kyl and others of their ilk claim that this was all a huge misunderstanding, and that the amendment was only intended to be applied to African American freedmen.
In fact, the discussions around the passage of the 14th Amendment back in the 1860s demonstrate that its supporters knew perfectly well that, in addition to assuring citizenship to the freed slaves, it would give “birthright” citizenship to children of foreigners living in the United States.
Garret Epps, in “Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil-War America” (2006, Henry Holt), makes this clear (pp 235-236). Opponents of the 14th Amendment raised the issue of the children of “undesirable” foreigners such as Chinese and “Gypsies” (Roma) getting citizenship by being born in the United States, and the amendment’s supporters essentially replied ,”Yes, and so what?”
What has changed since then has been the addition of laws passed by Congress to restrict immigration. But the language of the 14th Amendment is still unambiguous.
Some politicians, including Congressman Lamar Smith, R-Texas, have tried to take away the citizenship of children of undocumented immigrants by simple legislation. But most observers believe that this would be ruled unconstitutional. So GOP leaders now talk about amending the Constitution to “clarify” that only children of people legally in the United States in the first place are U.S. citizens. If this were applied retroactively (McConnell, Graham and Kyl have not gone into details, and want hearings first) it could possibly turn millions of especially Latino U.S.-born citizens into stateless persons. However, such a wild overreach is improbable.
There are several ways to amend the Constitution, all of them cumbersome. The method most commonly used is for both houses of Congress to approve the amendment, and then for it to be taken up either in state legislatures or special state constitutional conventions (the latter has only happened once). Three-fourths of the states have to approve the amendment before it is ratified. This often fails because not enough states have ratified it within an established time limit.
It is very improbable that this effort to gut the 14th Amendment will succeed, so why is the GOP doing it? And why do people like Graham, only a few months ago touted as a “moderate,” “reasonable” Republican who could be relied on to partner with Democratic Sen. Charles Schumer of New York to help achieve passage of comprehensive immigration reform, now go off on this anti-immigrant tangent?
Graham claimed on Fox News that undocumented immigrants come to the United States to “drop a child. It’s called drop and leave.” The choice of language is deliberately racist and sexist: Dark-skinned outsiders and barnyard animals “drop” (or “pop out”) their offspring. Folks like Graham have “blessed events” instead!
The purpose is transparently to pitch, in an electoral context, to the most retrograde elements in the body politic – the all-purpose lynch mob.
How to respond? Courage is needed, on the part of Democratic Party leaders and candidates, and on our part as well. The response to this new Republican provocation should not be more concessions, but a renewed fight for comprehensive immigration reform.