Republican leaders have spent the last couple of weeks reigniting a 140-year-old constitutional debate: Whether the 14th Amendment should grant citizenship to everyone born inside United States territory. South Carolina's Sen. Lindsay Graham, who was once considered an immigration ally for Democrats, demanded Senate hearings on the matter first, and party leaders have eagerly chimed in with support.
The most recent GOP big to pile on is House Minority Leader John Boehner, who would likely become speaker if the GOP wins in November. He told NBC's Meet the Press on Sunday,
I think that there is a problem. To provide an incentive for illegal immigrants to come here so that their children can be U.S. citizens does in fact draw more people to our country. I do think that it's time to secure our borders and enforce the law, and to allow this conversation about the 14th Amendment to continue.
So what, exactly, is the "conversation" Boehner wants? And is it at all grounded in constitutional law? Not really, but we'll explain anyway.
First, here's what the Republicans are talking about: The citizenship clause of the 14th Amendment, which was passed by Congress in 1866 and ratified in 1868. The clause comes as the amendment's first words, stating, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United State and the States wherein they reside."
Despite the apparently plain meaning of this provision, some critics argue that a close examination of the Congressional Record reveals that lawmakers never intended the provision to apply to the children of undocumented immigrants, even if they are born in the United States.
Michigan Sen. Howard Jacob, a Republican, authored the amendment's birthright clause. During congressional debate over the clause's language, Howard said that the provision would not grant citizenship to "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Today's critics have seized on that statement. They claim it is why Congress included the phrase "subject to the jurisdiction thereof" in the citizenship clause. Immigrants today must conform to the laws of the U.S. to be subject to its jurisdiction, they argue, and therefore a person who's in the country without papers cannot meet this condition and their children cannot claim citizenship by birthright.
Relying on original intent is certainly an important means of interpreting the Constitution, and our courts have long recognized this approach. But mounds of evidence point to a much different interpretation of the 14th Amendment's original intent than the one drawn by critics of citizenship-by-birthright.
Prior to 1868, U.S. citizenship had been granted by the common law principle of jus soli, meaning place of birth. The record of congressional debates over the 14th Amendment shows that some senators supported the "birthright" provision on the belief that they were simply "constitutionalizing" this long recognized principle.
The same discussion came up during debate over the Civil Rights Act, which Congress also passed in 1866. In addition to the Act's language calling for equal treatment of black people, it contained language that was almost identical to the birthright clause of the 14th Amendment. As Congress debated the Act, then-House Judiciary Committee Chair James Wilson of Iowa stated that, under the new law, "Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen of the Constitution." Proponents went on to say that this language would merely codify the common-law tradition that already decided citizenship based on one's residence rather than any other characteristic or status.
It's also crucial to remember the larger sweep of history when divining original intent. The citizenship provisions of both the Civil Rights Act and the 14th Amendment were each necessary congressional interventions to overturn the Supreme Court's Dred Scott decision, which held that African Americans were not citizens of the United States and never could be--because they were "a subordinate and inferior class of beings" and the framers never contemplated them as part of the political community.
In 1898, in the case of in United States v. Wong Kim Ark, the Supreme Court reviewed the citizenship-by-birth clause and held that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship. Opponents of "birthright" claim that since Wong Kim Ark's parents were legal residents, the court never really addressed the key jurisdictional phrase of the citizenship clause.
On the other hand, in more recent cases, such as Plyler v. Doe, the Supreme Court relied on the common law history in Wong Kim Ark and referred to the jurisdiction language of the 14th Amendment as having a "geographic" meaning. While a Ninth Circuit case called Rabang v. Immigration and Naturalization Service held that the court's review of the citizenship clause in Wong Kim Ark addressed a very narrow question and cautioned against implying any expansive meaning to the term "subject to the jurisdiction." Given the limited number of decisions in this area, it's unclear whether any of these cases will be seen as the final word.
All of which is to say that the tension between America's democratic ideals and its long history of racism on the question of citizenship lurks behind any discussion of the 14th Amendment. Until its ratification, immigration and naturalization were limited to white persons. Even after its passage, Native American children, though subject to U.S. jurisdiction, were typically declared members of a separate racial and national group and therefore not eligible for citizenship. Asians were for years denied the opportunity to seek citizenship and for a period were barred from even entering the country. Although African Americans gained citizenship through the 14th Amendment, the same Supreme Court that decided Wonk Kim Ark limited their rights with the "separate but equal" doctrine of Plessy v Ferguson.
As America expanded its empire following the Spanish American War, residents of these new American territories asked several courts whether they or their children were now citizens, since they were clearly under U.S. jurisdiction. With few exceptions, the answer was a resounding no. In rejecting these claims, courts often referred to Filipinos, Puerto Ricans and Pacific Islanders in the same racially derogatory terms as they did blacks in the Dred Scott case.
While those sorts of overt, pernicious references to race have disappeared in more recent immigration lawmaking, it is clear that much of today's anger over birthright citizenship is directed at the rapidly growing Latino population.
It's not, however, the first time this has come up in modern times. Legislation to restrict the birthright clause was introduced in Congress in 1993, but never made it out of committee. New bills have surfaced in several committees since 2005. Some true believers have concluded that the only way to limit citizenship is though a constitutional amendment, a process that is both lengthy and difficult.
Today's Republican leadership knows that's not going to happen, but it doesn't care. In the end, the 14th Amendment debate they've stirred is not about constitutional law; it's about electoral politics and the 2010 elections.