In 1848, the discovery of gold brought hordes of prospectors to California. In 1889, millions of acres of free land set off a rush of settlers into Oklahoma. Today, we are told, the chance to get U.S. citizenship for their unborn children is rapidly filling the country with illegal immigrants.
Critics see this as a malignant phenomenon that ought to be stopped. So Arizona State Sen. Russell Pearce, author of the new law directing police to check the immigration status of people they suspect of being here illegally, has another idea: denying citizenship privileges to anyone born in his state to undocumented parents.
He plans to offer legislation refusing a birth certificate to any child unless a parent can prove legal residence, a clever attempt to nullify birthright citizenship. He says the change would eliminate "the greatest inducement for breaking our laws," since having an "anchor baby" yields all sorts of benefits.
A Rasmussen poll found a plurality of Americans favor repealing birthright citizenship. Kentucky Republican Senate nominee Rand Paul has endorsed legislation to that end, which has attracted 91 sponsors in the U.S. House of Representatives. Groups like the Federation for American Immigration Reform are all for it.
But the idea fails on a couple of grounds. The first is constitutional. The policy originates with the Fourteenth Amendment, ratified after the Civil War, which says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
Pearce and his allies say illegal immigrants can be excluded because they are not subject to the jurisdiction of the United States. But that provision was included only to exempt children born to foreign diplomats.
The Supreme Court has left little room for argument. In 1898, it ruled that birth on American soil is "declared by the Constitution to constitute a sufficient and complete right to citizenship."
In 1982, it concluded that illegal immigrants are indeed "within the jurisdiction" of the state where they are present. To deny a U.S.-born child a birth certificate would almost certainly violate the right to the equal protection of the laws.
It would be bad for common-sense reasons as well. To start with, it would call into question the status of every new baby.
A report by the Immigration Policy Center pointed out that "all American parents would, going forward, have to prove the citizenship of their children through a cumbersome bureaucratic process."
This obligation is not something "we" are going to impose on "them." It would be a burden on all new parents, including those whose ancestors debarked at Plymouth Rock.
Supporters of the change regard birthright citizenship as an irresistible magnet for foreigners to sneak in. But the effect is vastly exaggerated.
One study cited in Peter Brimelow's 1996 anti-immigration screed, Alien Nation, found that 15 percent of new Hispanic mothers whose babies were born in southern California hospitals said they came over the border to give birth, with 25 percent of that group saying they did so to gain citizenship for the child.
But this evidence actually contradicts the claim. It means that 96 percent of these women were not lured by the desire to have an "anchor baby."
That makes perfect sense. The value of a citizen child is too remote to compete with the other attractions that draw people to come illegally—such as jobs and opportunity unavailable in their native countries.
True, an undocumented adult can be sponsored for a resident visa by a citizen child—but not till the kid reaches age 21. To imagine that Mexicans are risking their lives crossing the border in 2010 to gain legal status in 2031 assumes they put an excessive weight on the distant future.
Nor are the other alleged freebies very enticing. Most of the few that are available to undocumented foreigners, such as emergency room care and public education for children, don't require them to have a U.S. citizen child. Illegal immigrant parents are ineligible for welfare, Medicaid, food stamps, and the like. They can be deported.
Barring citizenship to their newborn babies wouldn't make these families pack up and go home. It would just put the kids into a legal jeopardy that impedes their assimilation into American society—without appreciably diminishing the number of people going over, under, around or through the border fence.
Punishing innocents without accomplishing anything useful? The opponents of birthright citizenship need an anchor in reality.
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