one (a retirement that didn’t sit too well with the homeboys; instead of a gold watch they tried to kill him), casually reflected on the brazen nature of the practice that might best be described as ‘run, squat and drop.’
“By the time dad had to leave Ciudad Juarez, my mother had borne three of his children, including myself, all in El Paso, on the American side…this was done to help ease the transition from alien status to legal residency,” Rodriguez writes in Always Running. “There are stories of women who wait up to the ninth month and run across the border to have their babies, sometimes squatting and dropping them on the pavement as they hug the closest lamppost.”
Unrestrained mass immigration—with one million legal immigrants and at least three times as many illegal immigrants entering the nation each year—and the elevated birth rates among those immigrants has, in just a quarter of a century, set the stage to remake the ethnic, cultural and political dynamic of the United States. A study conducted by the Center for Immigration Studies in 2005 determined that immigrant women’s birthrates actually increase in the United States over the fertility rates in their home countries. Mexican women in the U.S. in 2002 were averaging 3.5 children per woman, verses 2.4 children in Mexico. When adjusting for legal status, the same study concluded that illegal immigrants have a birthrate that is, on average, 50 percent higher in the U.S. than the birthrate for American women. The impact of these prolonged trends is now coming into focus. Recent census data reveal that one quarter of all kindergartners in the United States are now Latino and, if the present dynamic continues, white school children will be the minority across the nation in less than 15 years. In the American southwest the racial and cultural impacts of mass immigration from Mexico and Latin America is inescapable, with Latinos now the majority of all K-12 students in California, Texas, New Mexico and Arizona.
Alarm bells in various quarters have actually been sounding over this issue for years and have drawn support at times from such a diverse array of quarters that it lays bare the lie that opposition to exploding immigration rates is confined to the social conservative wing of the Republican Party. In 1993, Senator Harry Reid proposed limiting citizenship to the children of women who were either citizens or in the U.S. legally. Reid in fact was a one-time opponent of illegal immigration who has long since abandoned his stance as illegal immigrants poured into Nevada to be used by business interests to replace citizen employees and workers at booming construction sites and casinos. Less than a decade after his signature legislation triggered a tidal wave of illegal immigration, Senator Alan Simpson, co-sponsor of the Simpson-Mazzoli Act in 1986, also voiced support for restricting birthright citizenship.
In 2005, Georgia Congressman Nathan Deal introduced his Citizenship Reform Act, which garnered 70 cosponsors and made its debut in a Republican-controlled House. Yet the GOP leadership refused to let the legislation limiting birthright citizenship come to a vote. Deal tried again in 2007 with the Birthright Citizenship Act, which met the same fate. Former Arkansas Governor Mike Huckabee waded briefly into the issue early in his 2008 presidential bid, telling a prominent anti-illegal immigration activist that had endorsed his candidacy that he would support a constitutional amendment to end the practice of granting birthright citizenship and also stated his support for a test case that would force the Supreme Court to take up the issue. But Huckabee quickly backpedalled as media outlets picked up the story, demonstrating a flair for splitting the difference by saying he did not support a constitutional amendment that would restrict birthright citizenship yet not disavowing an effort to force a test case before the Supreme Court. And constitutional literalist Ron Paul, the Texas congressman whose Quixotic run for the GOP nomination built a massive national grassroots campaign among disaffected liberals, disgusted independents and young conservatives, came out early and staunchly against birthright citizenship and announced his support for ending the practice. Unlike Huckabee, he didn’t hedge after he started taking fire from pro-immigration groups.
Despite significant support from a fairly diverse range of ideological quarters, the opposition to any effort to change the policy of birthright citizenship can draw upon a powerful consortium of ethnic and business special interests, including the Hispanic Congressional Caucus and the U.S. Chamber of Commerce, and effectively ensure that bills such as Deal’s are killed in committee. In the 2008 elections, central Virginia Congressman Virgil Goode (who won his seat as a Democrat in 1996 but then became a Republican, then an Independent and finally a Republican again) made his opposition to birthright citizenship a centerpiece of his popular position against illegal immigration. But Goode lost an extremely close race to Democrat Tom Perriello, who openly mocked Goode’s support for legislation that would end birthright citizenship during a debate, noting the bill was unable to garner the backing of the Republican leadership in the House. Perriello went on to dismiss continuing efforts at ending the practice as being legislative still births: dead on delivery.
Great Amendment, Terrible Policy
Chapman’s Eastman filed an amicus brief for the Claremont Institute in the U.S. Supreme Court in the U.S. government’s case for detention against Yaser Hamdi, a Taliban foot soldier captured in the opening days of the invasion of Afghanistan. Hamdi was born in Louisiana while his Saudi parents worked there, and he used his citizenship status to challenge the government’s intent to hold him indefinitely as an enemy combatant. For Eastman, the original intent of the 14th Amendment clearly establishes a threshold for citizenship at birth that is determined by whether the parents are subject to jurisdiction of the U.S.—which means that their exclusive loyalty to the country has been mutually established, i.e. through legal alien or citizenship proceedings. Today the term jurisdiction has been diluted to the point that it has lost that defining context, an erosion of meaning that has had critical results.
“There are really two issues. There is the legal issue; does the Constitution already mandate birthright citizenship? And then there is the policy issue; if it does [mandate it], then should we amend it and get rid of it? Or if it doesn’t mandate it, should we adopt it by statute because it makes good sense?” Eastman said. “We argued that that understanding of citizenship—that just because [Hamdi] was born here made him a citizen— is wrong and we started trying to lay the groundwork for revisiting it. It has been about a 50 year popular conception as to what the citizenship clause requires. But as a result of that, Hamdi ended up being sent back to Saudi Arabia and he renounced his citizenship, so the question of whether he was a citizen in the first place was never presented.”
Eastman said that as Congress pushes repeatedly for what proponents have termed “comprehensive immigration reform,” legislation that will almost certainly contain expanded ‘guest worker’ programs at the behest of business interests, the question of what will become of the children born here to these temporary workers and their families puts the issue of birthright citizenship “front and center” in the operational logistics of immigration reform. If the U.S. is admitting perhaps millions more “temporary” workers ostensibly with the mutual understanding that they will return to their home countries after a few years, then does that preclude their children from birthright citizenship?
And if the present policy of granting birthright citizenship remains in place following a mass amnesty and the expansion of guest worker programs, the impacts will almost certainly be more overwhelming than the dramatic demographic shifts the country has experienced over the past two decades. As Eastman notes wryly, it is a quandary that’s emerged from a policy that is based on a misunderstanding.
“The text of the 14th Amendment is not quite what we think it is,” Eastman said. “It says ‘All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens.’ Now it’s that last phrase, ‘subject to the jurisdiction,’ where the fight is.”
There is little doubt that pro-immigration activists are reluctant at best to engage in intellectual combat over what admittedly can sometimes come off as digressions into the arcane nuances of Constitutional law. But it is clear that a legitimate debate over birthright citizenship scares the hell out of ethnocentric Latino organizations that have rightly concluded the current policy is the lynchpin in the rapid expansion of their demographic powerbase. In response to one of Representative Nathan Deal’s efforts to end the practice, groups like the National Council of La Raza unleashed a coordinated attack, using spokespeople to label any such effort the work of “extreme wackos” and a “despicable attack on immigrants.” Just what is so “wacko” about considering whether a misguided policy has rapidly delivered America to an untenable position in terms of its carrying capacity remains unclear, but Eastman said the policy’s formula is rather elementary at its root.
Eastman describes the path to our present notion of birthright citizenship a “bizarre story,” one that veers from the original intent of the framers of the 14th Amendment and the first court cases and legal treatise that emerged in the 1880s—an interpretation that hued to the bright line of “owing allegiance to” the country—through the 1898 Supreme Court decision in the case of Wong Kim Ark and into the last half of the 20th Century, when our present day interpretation of birthright citizenship really took hold. While the Wong Kim Ark case, which involved a man born in America to permanent, lawful Chinese residents, is often cited as the baseline legal decision that offers a clear interpretation of the citizenship clause of the 14th Amendment, Eastman said the high court’s ruling does no such thing.
“You can sympathize with why they issued this decision,” Eastman said. “We had entered into a fairly despicable treaty with the Chinese emperor that deprived Chinese immigrants of their human rights to emigrate. We refused to recognize that they could ever renounce their allegiance to the Chinese emperor.” Of the key distinctions, Eastman said, is the fact that the Chinese immigrants were here legally and had demonstrated their loyalty to the United States to fullest extent they could—stymied only by the law itself. Eastman said the ruling used broad language for a narrow case, but in the half-century that followed it the decision did not pose as the final word on the issue. “For the next 50 years, no one took the broader language as dispositive, that case was limited to its narrow set of facts,” he said.
To the contrary, major domestic policy initiatives that involved large numbers of immigrants, such as the Bracero program of the 1950s, did not allow the children of participating migrant workers to claim automatic citizenship for their children, Eastman said. “The first guest workers, the ‘Braceros,’ their children were not deemed citizens and when they moved back to Mexico they took their kids with them because no one [considered] their children to be citizens.”
Birth Is All You Need
According to Eastman, the real shift in popular perception began to take root in the late 1960s, when the idea that mere birth on American soil alone ensured citizen status.
“I have challenged every person who has taken the opposite position to tell me what it was that led to this new notion,” he said. “There’s not an executive order. There’s not a court decision. We just gradually started assuming that birth was enough.”
Eastman attributes some of it to our nation’s loss of an intrinsic understanding of the language that the framers of the 14th Amendment spoke and used in that era, ergo a century later the phrase “subject to the jurisdiction” has been watered down in the collective American consciousness to require little more than an adherence to traffic safety laws.
“Thomas Jefferson talks about immigration in very favorable terms, but what [the framers] were trying to do then was populate a continent so it could withstand European pressures to take us back over again,” Eastman said. “The dynamic has changed now, and what we have done by having very low quotas on legal immigration and turning a blind eye to massive illegal immigration is to create this subclass and create this extraordinary drain on our social services that is bankrupting most of the state and local governments that are in the path of this migration wave. You foster an entitlement mentality but also an ignoring of the rule of law.”
Yale professor Peter H. Schuck, who teaches immigration law and is one of the nation’s preeminent scholars on the issue of birthright citizenship, lays out the question that the president, Congress and the courts have dodged decisively answering: “If mutual consent is the irreducible condition of membership in the American polity, questions arise about a practice that extends birthright citizenship to the native born children of such illegal aliens,” Schuck writes in Citizenship Without Consent: Illegal Aliens in the American Polity. “The parents of such children are, by definition, individuals whose presence within the jurisdiction of the United States is prohibited by law and to whom the society has explicitly and self-consciously decided to deny membership. And if the society has refused to consent to their membership, it can hardly be said to have consented to that of their children who happen to be born while their parents are here in violation of American law.”
Cal State San Bernardino’s Erler notes that a new constitutional amendment is not necessary to restore the operational policy of immigration law to the original intent envisioned by the framers of the 14th Amendment. In 1923, there was a universal offer of citizenship to all Native American tribes, an act that again affirmed the notion of reciprocal consent. “There was an offer on the part of the U.S. and an acceptance on the part of the individual,” Erler said. “Thus, Congress used its legislative powers under the 14th Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal immigrants are not subject to American jurisdiction. A constitutional amendment is no more required now than it was in 1923.”
Eastman agrees that Congress has the plenary power to make policy judgments to determine naturalization requirements and immigration levels— a power bestowed upon Congress by the founders of the republic because, Eastman said, they realized that as the new nation took shape that regulating how many people the United States could accept from various parts of the world and bring them into the American understanding of the role of self government was critical to the country’s survival.
“People have tried to tag that with ‘They only want white Europeans rather than Asians or Latinos,’” Eastman said. “That wasn’t it at all. They wanted people coming from countries where they had grown accustomed to governing themselves because it is much easier to assimilate.” The massive waves of illegal immigration that birthright citizenship helps fuel and perpetuate now places strains on the American system never before experienced in the history of the country, including a creeping culture of law-breaking that is highly corrosive.
“The notion of the primacy of the rule of law to our system of government goes out the window. And that is a very dangerous thing,” Eastman said. “We have embarked upon a very dangerous experiment at the moment. We have 12 to 20 million people here who consider their allegiance to be to their home country.”
Already across the swath of the American southwest that foreign allegiance is dramatically on display, from the more benign slogans like “100 percent Mexican” that can been seen on ubiquitous bumper stickers, to the far more violent exhortations of
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