The birthright citizeship debate

The Austin American-Statesman has a long article on the debate over birthright citizenship that is granted to children of people who are in the country illegally. (Registration hassle required.) The article qoutes a Constitutional Law professor from the University of Texas School of Law who claims the proposed legislation is "clearly unconstitutional."

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House Bill 28, filed Monday by Rep. Leo Berman, R-Tyler, would exclude U.S.-born children of illegal immigrants from access to public education and health care, unemployment, public housing, disability and other state benefits. Analysts think it is the first-ever state challenge of birthright citizenship.

With the start of the legislative session still more than seven weeks away, the bill is stirring an outcry among critics, who say it is blatantly unconstitutional and who question the fairness of punishing U.S. citizen children for their parents' decisions to enter the country illegally. The dust-up is rekindling a bitter debate about birthright citizenship and the 14th Amendment that provides it.

"It's very, very clear beyond reasonable doubt that under current interpretation of the 14th Amendment, and simply U.S. law, that anybody born in the United States, except for a few exotic examples, becomes a citizen," said Sanford Levinson, a constitutional law scholar at the University of Texas.

Berman's bill is unconstitutional, Levinson said. "That's not even a close case," he said. In recent years, however, some who want to clamp down on illegal immigration have seized on the 14th Amendment, saying it was never intended to grant citizenship to children of illegal immigrants.

Contending that birthright citizenship encourages illegal immigration, some critics have dubbed the U.S.-born children of illegal immigrants "anchor babies" because they can sponsor their parents for legal permanent residency when they turn 21.

"That's the reward they get for violating our laws," Berman said. "That's got to stop."

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Legal experts interpret a 1982 Supreme Court decision as at least indirectly affirming the 14th Amendment's citizenship rights for U.S.-born children of illegal immigrants. The decision struck down a Texas law and required that the state provide public education to children regardless of their legal status.

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Ratified in 1868, the amendment was designed to protect freed slaves and their children. Section 1 says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

If the 14th amendment can be read to permit affirmative racism, aka, "affirmative action" it is not that much of a stretch to say it does not cover people who are in the country illegally, since the clear intent of the amendment was to cover former slaves. The courts have certainly had no trouble in denying non preferred classes equal protection of the law. Under current schools may interpretations, schools may discriminate against whites and Asians by giving preferences to blacks and Hispanics.

The 1982 ruling is just another example of the lack of seriousness by the courts and most administrations when it comes to enforcing the rule of law in immigration matters. I believe that even under the 1982 ruling the school district could still turn in the parents of the students to the immigration enforcement authorities. Perhaps Berman should amend his legislation to require that if a court finds that the students are eligible for enrollment that the district shall then be required to pass on information about people in the country illegally to ICE.