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Attacking the 14th Amendment

A key opponent of 'birthright citizenship' claims that the courts have misinterpreted the Constitution. But he's wrong

In almost every session of Congress he has been part of since 1995, U.S. Rep. Brian Bilbray (R-Calif.) has unsuccessfully sponsored a law that aims to deny American citizenship to children born in the United States of non-citizen parents. His persistence is not a surprise: Bilbray is a former lobbyist for the Federation for American Immigration Reform (FAIR), a right-wing, anti-immigrant group that paid him almost $300,000 to lobby on its behalf between 2002 and 2005, and has headed the hard-line Congressional Immigration Reform Caucus since early last year. The current version of Bilbray's perennially losing legislation is called the Birthright Citizenship Act of 2007.

Still, it seems strange that Rep. Bilbray would sponsor such a bill, given that his own mother was a non-citizen. But Bilbray carved out an exception that would conveniently apply to him — that a child born in the U.S. is considered a citizen so long as at least one parent is (1) a citizen; (2) a lawful permanent resident; or (3) in active military service. Bilbray's father was a U.S. citizen.

Even if Bilbray could manage to get his bill enacted into law, it would almost certainly be struck down as unconstitutional. The Fourteenth Amendment to the United States Constitution states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." It would take a constitutional amendment, not a mere act of Congress, to deny citizenship to those born on U.S. soil.

Bilbray claims that his bill is simply advancing an interpretation of the Fourteenth Amendment — as Congress is permitted to do under its power to enact laws to enforce the Constitution — rather than proposing a change that would require the very difficult and extended process of amending the Constitution. The crux of his tortured argument is that the Fourteenth Amendment clause "subject to the jurisdiction thereof" denies citizenship to American-born children whose parents "owe allegiance to another country." Not surprisingly, Bilbray is not specific about what that phrase means.

Rep. Bilbray
U.S. Rep Brian Bilbray (R-Calif.)

But as the nonpartisan Congressional Research Service found: "Although the primary aim of the Fourteenth Amendment was to secure citizenship for African Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the U.S. and subject to its jurisdiction, regardless of race, ethnicity, or alienage of the parents" (emphasis added).

Though some senators raised concerns about the amendment creating a large influx of Chinese immigrants, they ultimately concluded that the children of immigrants from any country would be U.S. citizens so long as they were born in the United States. (The senators debating the amendment believed that it did not, however, grant citizenship to American Indians, who were subject to the jurisdiction of their own tribes.)

More than a century of case law backs this reading of the amendment. In 1898, in the case of United States v. Wong Kim Ark, the Supreme Court declared that a child born in the United States was a citizen, even though his parents were Chinese aliens who were ineligible for naturalization. The high court explicitly rejected the argument Bilbray and FAIR continue to make — that the Chinese citizenship of his parents made a child "subject to the jurisdiction of" China. The court also rejected Bilbray's claim that Congress has the power to alter the definition of citizenship, stating that the Fourteenth Amendment "has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."

Bilbray likes to cite the 1884 Supreme Court case of Elk v. Wilkins, which denied citizenship to a Native American. But the Court's analysis in Elk — which was later overturned by statute — was completely different. In Elk, the Court held that American Indians who had not been naturalized by treaty were not citizens because they were members of an independent political community to whom they still owed their immediate allegiance, and were therefore not subject to the jurisdiction of the United States. American Indians later became citizens when the Congress passed the 1924 Snyder Act, often called the Indian Citizenship Act, which declared all American Indians born in the United States to be U.S. citizens.

Most Americans agree that sensible immigration reform is needed. But Bilbray and the interest groups that support him — members of the board of directors of FAIR, which also seeks to dismantle the Fourteenth Amendment, gave him some $10,000 in campaign contributions in 2006 — are seeking to overturn a fundamental right long ago accorded to those born in our country. Reforming a broken immigration system does not require punishing innocent children for the infractions of their undocumented parents, most of whom came to this country merely to seek a better life.

Rhonda Brownstein is the director of the Southern Poverty Law Center's Legal Department.