Repeal the 14th Amendment?

New challenges to citizenship under the 14th Amendment

Dr. Sue Weishar, Migration Specialist

The 14th Amendment to the U.S. Constitution is considered the cornerstone of American civil rights. It ensures due process and equal protection under the law to all persons, and citizenship to everyone born or naturalized in the United States:

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 any person within its jurisdiction the equal protection of the laws.

The 14th Amendment was enacted after the Civil War in 1868 to repudiate the Dred Scott decision of 1857, which denied citizenship to U.S.-born children of African descent . The passage of the 14th Amendment has been called one of the greatest legacies of the Republican Party. Through it the right of citizenship was taken out of the political realm and provided an objective standard—birth.

In July, Sen. Lindsey Graham (R-S.C.) announced he was considering introducing a constitutional amendment to revoke birthright citizenship, claiming that “people come here to have babies.” Minority leaders Mitch McConnell (R-KY) and Minority Whip Jon Kyle (R-AZ) joined in by calling for congressional hearings to explore the matter. 

In a disturbing new development to the escalating political scapegoating of undocumented immigrants, on October 20, lawmakers from 15 states announced their intention to introduce legislation in their respective states to deny birthright citizenship, in an effort to force the Supreme Court to reconsider its interpretation of the 14th Amendment.

Conservative columnist and former speechwriter for President George W. Bush Michael Gerson has been one of the most vociferous opponents of efforts to revoke birthright citizenship. He writes, “Critics of birthright citizenship are in revolt against the plain meaning of words. They sometimes assert that ‘subject to jurisdiction thereof’ must exclude illegal immigrants. It doesn’t. Undocumented immigrants and their children are fully subject to American laws.” He called Sen. Graham’s recent stance “self-serving cynicism” and abandoning the principle of birthright citizenship “viciousness and prejudice on a grand scale” that would be “particularly cruel when it comes to the children of illegal immigrants.”

The Immigration Policy Center argues that ending birthright citizenship would be unconstitutional, impractical, expensive, complicated, and would not stop illegal immigration:

• The Supreme Court has upheld the meaning of the citizenship clause in several decisions, beginning with Wong Kim Ark in 1898;
• Instead of decreasing the number of undocumented persons, the size of the undocumented population would actually increase as a result of the new policy—from 11 million to 16 million by 2050;
• Eliminating birthright citizenship would impose a significant burden on all Americans, who would have to navigate complex laws to prove their citizenship, not just provide a birth certificate;
• Despite proponents’ claims, there is no evidence that repeal of birthright citizenship would deter future unauthorized immigration.

What is needed to fix our broken immigration system is comprehensive immigration reform that would recognize the status of undocumented persons already here and create legal channels for persons to immigrate to the U.S. at levels that our economy demands. Then we will never again find ourselves in a situation untenable in democracy, namely  “a double society, one visible with rights and one invisible without rights- a voiceless underground of undocumented persons.” [Catholic Bishops of U.S. and Mexico]