Republican leaders in Congress are now flirting with changing portions of the 14th Amendment—which grants citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof”—to deny citizenship to children born here to illegal immigrants.
The idea of modifying birthright citizenship has been around for decades but was previously relegated to the fringes of the immigration restriction movement. Yet in recent days, Sens. John McCain, Lindsey Graham and Jon Kyl have embraced the idea; Senate and House GOP leaders Mitch McConnell and John Boehner have proposed hearings.
Repealing birthright citizenship is a terrible idea. It will unquestionably jeopardize the electoral future of the GOP by alienating Hispanics—the largest minority and fastest-growing segment of the U.S. population. More importantly, ending birthright citizenship would fundamentally change what it means to be an American.
Proponents of repeal argue that the 14th Amendment was passed after the Civil War to guarantee citizenship to freed slaves, and that it was never intended to grant rights to the offspring of illegal aliens. But this argument is a non sequitur. At the time of the adoption of the amendment, there was no category of “illegal alien” because immigration was unrestricted and unregulated. If you secured passage to the United States, or simply walked across the open border with Mexico or Canada, you could stay permanently as a resident alien or apply to be naturalized after a certain number of years. And if you happened to give birth while still an alien, your child was automatically a citizen—a right dating back to English common law.
The most serious challenge to birthright citizenship for the children of aliens came in 1898, and it involved a class of aliens who were every bit as unpopular as present-day illegal immigrants: the Chinese. Like most illegal immigrants today, the Chinese came here to work as common laborers, eagerly recruited by employers but often deeply resented by the workers with whom they competed. This popular resentment, coupled with racial prejudice, led to America’s first immigration restriction law, the Chinese Exclusion Act of 1882. It was followed by successively more restrictive federal and state laws that denied Chinese aliens—and, later, other Asians—the right to own property, to marry, to return to the U.S. if they left, or to become American citizens.
With anti-Chinese alien sentiment still high, the Supreme Court took up the case U.S. v. Wong Kim Ark in 1898. Born in San Francisco to alien parents who later returned to China, Wong travelled to his parents’ homeland for a visit and was denied re-entry on his return in 1895. The government argued that Wong had no right to birthright citizenship under the 14th Amendment because his parents remained “subjects of the emperor of China” not subject to U.S. jurisdiction, even while residing in California at the time of his birth. In a 7-2 vote, the Supreme Court ruled otherwise.
The court found that the only persons Congress intended to exclude from birthright citizenship under the 14th Amendment were children born to diplomats—an ancient, universally recognized exception even under common law; Indians, who by treaty were considered members of sovereign nations; and children of an occupying enemy. “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” wrote Justice Horace Gray for the majority. To hold otherwise, he noted, would be to deny citizenship to the descendants of English, Irish, Germans and other aliens who had always been considered citizens even if their parents were citizens of other countries. For more than a 100 years, the court has consistently upheld this analysis.
Our history has been largely one of continuously expanding the community of people regarded as Americans, from native-born whites to freed slaves to Indians to naturalized citizens of all races and ethnicities. Since the abolition of slavery, we have never denied citizenship to any group of children born in the U.S.—even when we denied citizenship to their parents, as we did Asian immigrants from 1882 to 1943. This expansive view of who is an American has been critical to our successful assimilation of millions of newcomers.
Conservatives should not betray these values based on a misreading of American history and legal precedent. Instead of amending the Constitution to eliminate “anchor babies”—the ugly term opponents of birthright citizenship use to describe these U.S. citizens—Republicans should be helping them become good Americans.
Ms. Chavez is chairman of the Center for Equal Opportunity in Falls Church, Va. and was director of public liaison in the Reagan White House.
