Senator Lindsey Graham Threatens Constitutional Right to Birthright Citizenship

Republican Senator Lindsey Graham of South Carolina recently proposed abolishing the long-standing constitutional law of birthright citizenship. The law states that any person born in the United States, who is “subject to the jurisdiction thereof,” is a U.S. citizen.

Graham’s remarks were made immediately after a federal court blocked provisions in an Arizona law which would give local police the authority to check a person’s immigration status and require immigrants to prove their legal authorization to be in the country.

If Graham’s comments sound familiar, you may recall law professor John C. Eastman making the same proposal to a House of Representatives subcommittee in 2005 during his presentation, “Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11”.

Graham’s recent attack on the Fourteenth Amendment’s birthright citizenship mandate represents only the latest development in our country’s extensive history of xenophobia.

The Fourteenth Amendment was passed during the Reconstruction Congress’ efforts in the mid-1860s to eliminate the vestiges of slavery, and specifically the Supreme Court’s ruling in Dred Scott v. Sandford that emancipated African-Americans could not become U.S. citizens. The Court’s horrific decision relied upon a Roman social compact theory that the entire country needed to consent for individuals to become citizens. This differed from the birthright theory developed in seventeenth century English common law.
In essence, the Fourteenth Amendment restored birthright citizenship and ensured that the federal government and States could not deny citizenship to anyone who satisfied the Amendment’s definition.
Professor Eastman contends that the clause requiring that individuals be subject to U.S. jurisdiction for birthright citizenship should exclude undocumented immigrants’ offspring, as these immigrants cannot be drafted into the U.S. military or tried for treason. Such twisted logic fails to acknowledge the 1866 congressional debates which rejected this argument.

The “subject to the jurisdiction thereof” clause was meant to apply solely to those who were from families of foreign diplomats (who are granted immunity) or of an invading army (treated as an enemy combatant).
In response to Pennsylvania Senator Edgar Cowan’s attempt to exclude Chinese immigrants populating California and “Gypsies who wander in gangs in [his] State,” other senators confirmed that such individuals’ children born in the U.S. would be granted citizenship pursuant to the Fourteenth Amendment. Cowan even stated that children of German immigrants should be granted citizenship, but those of Asian ancestry should be excluded.

Today’s anti-immigrant rhetoric asserts that undocumented immigrants will be able to obtain legal status and citizenship through their “anchor babies” born in the U.S.

This purported “loophole” remains nothing more than a fallacy, as the strict immigration laws confer no such benefits on those in illegal status. The INA only places no waiting times on granting permanent legal status to immigrant parents of a U.S. citizen who attained 21 years of age, and numerous grounds of inadmissibility prevent this grant of permanent residence (LPR) to those in unlawful status.

An immigrant who entered the U.S. illegally generally can only obtain LPR by staying in the U.S. for less than 6 months and not returning for at least 3 years, an unrealistic scenario when undocumented immigrants make up approximately 5% of the U.S. workforce.

As many legal scholars have commented, the attempt to restrict birthright citizenship represents a return to a caste system, where certain groups are denigrated based on their heritage. See Nicole Newman, Note, Birthright Citizenship: The Fourteenth Amendment’s Continuing Protection Against an American Caste System, 28 B.C. Third World L.J. 437 (2008).

Solving complex problems of immigration and economics cannot be done at expense of the American ideal of equal opportunity – no one born in this country should be viewed as second class.