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Event Report: The Historical and Constitutional Underpinnings of Birthright Citizenship

8 April 2011

Elliot Fox, University of California Los Angeles. SPSSI Spring Intern

SPSSI Central Office representatives recently attended an event put on by the Center for American Progress, Born in the USA? The Historical and Constitutional Underpinnings of Birthright Citizenship. The panelists discussed legislation that has been introduced in many states, as well as at the national level, that would end the right of birthright citizenship for all in the United States. All panelists agreed such laws would be deemed unconstitutional by the courts, should they pass, and wanted to give context on the 14th amendment of the Constitution that grants birthright citizenship.

Elizabeth Wydra, Chief Counsel for the Constitutional Accountability Center, mentioned three critical aspects of the 14th amendment that need to be addressed when discussing repealing birthright citizenship. First, when considering how to determine US citizenship, it was not considered by the Congressmen at the time to determine citizenship by bloodline, this goes against that anti-caste and anti-aristocracy mentality. Second, the argument that the 14th amendment was only implemented to protect the children of slaves is incorrect and the 14th amendment sought to also help foreigners gain citizenship. Finally, lawmakers formalized this idea of birthright citizenship as a constitutional amendment, meaning they did not want it to change very easily with the legislature.

Panelists also mentioned that the idea of ending birthright citizenship is not an issue that is right vs. left or conservative vs. liberal but rather, according to Linda Chavez, chairman at the Center for Equal Opportunity, the issue is being brought up because the US has reached a peak of frustration on illegal immigration. And although illegal immigration is actually down since its peak in about 2000, many Americans believe it is a larger problem today.

James C. Ho of Gibson Dunn & Crutcher and former Solicitor General of Texas agreed it was not a right vs. left issue and said that the ending of birthright citizenship violates three pillars of conservatism. The first being textuality, meaning the actual words of the Constitution truly matter. Secondly, originality, which refers to the fact that the Constitution is not an evolving document. Lastly, exceptionality, which refers to American exceptionalism and the fact that we are different in many ways from other countries, so the idea that other countries do not have the same citizenship laws as the US should not matter.


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