In an interview with Time magazine, Arizona state Sen. Russell Pearce confirmed his next legislative target: children. He and other Republicans plan to introduce legislation this fall to deny birth certificates to the children of undocumented immigrants.
Pearce authored Arizona’s anti-immigrant law SB 1070, which requires police officers to demand proof of citizenship of anyone they stop at a traffic light. About his new proposal, Pearce has acknowledged that there’s a constitutional amendment which states a person born in the United States is a citizen, but he insisted that he and other Republicans will work around the constitutional issue. "We will write it right,” he told Time of the new bill.
How Pearce plans to get around the 14th amendment is the question. He might go with what other anti-immigrant commentators and attorneys have already suggested and focus on this line from the constitutional amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ”
That tidbit—“subject to the jurisdiction thereof”—anti-immigrant attorneys argue was originally stated as “and not subject to any foreign power.” Translation: even if you were born here, you can’t be a citizen if you have an allegiance to another country, let’s say through your mom who was born in Mexico.
Writing in the Texas Review of Law and Politics, Lino Graglia has argued that the “jurisdiction requirement” hasn’t been defined. Homeland Security has only stated that the children of foreign diplomats are not subject to the jurisdiction of the U.S., Graglia writes. It hasn’t said anything about the children of undocumented, or documented, immigrants. To bolster his argument, Graglia notes that Congressmen in the late 1800s when the 14th Amendment was passed debated what to do about Native Americans, specifically how to avoid giving them citizenship.
It was decided that Native Americans weren't covered by that thorny jurisdiction issue because they had allegiance to their tribes. “This reasoning would seem also to exclude birthright citizenship for the children of legal resident aliens and, a fortiori, of illegal aliens,” writes Graglia.
As The Arizona Republic columnist Laurie Roberts reminds us, there are several Supreme Court cases that have taken up the issue and found, time and time again, that being born in the U.S. confers citizenship. But she also points out what one Pennslyvania senator was saying in 1868: "Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?” Juxtapose that to Pearce's questions today and it's disturbing how little the world changes in 142 years.