One clause of the 14th Amendment grants citizenship to those born in the United States. To be specific, it 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.
From an historical standpoint, it was intended to ensure that the southern states did not deny American citizenship to the newly freed slaves. Not surprisingly the amendment was controversial in its day and was attacked on various grounds, including some rather racist views. Once again it is generating controversy. Or, to be more precise, certain people who are very worried about immigration are making it a focus of controversy.
Leading the attack on this amendment is Senator Lindsey Graham. Being a reasonably intelligent man, Graham has made a case for reconsidering this clause.
His first argument is that the amendment served its historical purpose and is no longer needed. This argument does have a certain appeal. After all, if a law is created to do X, when X is done it seems that there is no longer any need for the law. However, it is important to consider whether the law is still needed or not. After all, many laws have been created to address specific problems and then have gone on to become a part of enduring law.
Addressing this concern, Graham notes that “Birthright citizenship doesn’t make so much sense when you understand the world as it is.” Thus, his view is that this clause is no longer needed because it has fulfilled its intended purpose and there is currently no justification for keeping it.
His second argument builds on his first by adding that the clause is allegedly being misused to the detriment of America.
To support this claim, he contends that there are “thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so that child will become an American citizen.” While this seems like hyperbole, it is an empirical claim and subject to verification.
For the sake of the argument, let it be assumed that people are coming here illegally with the express purpose of having children. In this case, this does seem to be a matter of concern. As he says, to grant their children citizenship does seem to be rewarding them for their illegal actions.
Graham goes on to make what might seem like an odd claim: he asserts that tourists come to the US on 90 day visas so as to have children who will thus be American citizens. While I was not aware that this practice was a common one, this is also an empirical matter.
Graham’s main worry about this sort of birth tourism is that it “cheapens American citizenship. That’s not the way I would like it to be awarded.”
While I do understand his view that American citizenship is an important and valuable thing, his criticism seems to be weakened by the fact that anyone born to an American gets to be an American. Aside from naturalization, all that it takes to make an American citizens is for at least one American to impregnate or be impregnated. So, if Americans Sally and Sam have a drunken hookup at a party and Sally gives birth to Andy, then Andy is an American.
If Graham is really serious about making American citizenship more valuable, then perhaps he should propose the approach taken in Heinlein’s Starship Troopers: full citizenship must be earned by serving in the military or other suitable public service. That would make citizenship less cheap.
I do agree that the law (even Amendments) should be subject to review and evaluation to see if they are still needed or if they are actually inimical to the good of the people. However, changing an Amendment should be a matter of some gravity. It should not be done merely on the basis of a current political controversy. In the case at hand, the motivation seems to be based in the current political posturing over immigration. There are also some concerns being raised that at least some people pushing for changing this clause are motivated by racism. Since the original opposition to the amendment was often motivated by racism, this is an interesting bit of irony.
I am, oddly enough, with Lou Dobbs on this issue: the Constitution should not be changed simply “because the result may be inconvenient to some and their political views.”