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Republicans are ramping up the birthright battle

By Michael Gerson
Friday, August 13, 2010; A19

The final state to ratify the 14th Amendment was Ohio -- in September 2003. The Ohio Legislature had passed the amendment in 1867 but rescinded its approval a year later, claiming it was "contrary to the best interests of the white race." When Ohio finally rectified this embarrassing bit of history, just one legislator -- Republican state Rep. Tom Brinkman from Cincinnati -- voted against it. His opposition was viewed as an isolated curiosity.

Now another Ohio politician, Rep. John Boehner, the House minority leader, questions the centerpiece commitment of the 14th Amendment: birthright citizenship. He is joined by Senate Minority Leader Mitch McConnell (R-Ky.), along with Sens. Jon Kyl (R-Ariz.) and Lindsey Graham (R-S.C.).

The amendment reads: "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." This is not the only place in the Constitution where birth is decisive. Any "natural born citizen" who meets age and residency requirements can be elected president.

Critics of birthright citizenship are in revolt against the plain meaning of words. They sometimes assert that "subject to the jurisdiction thereof" must exclude illegal immigrants. It doesn't. Undocumented immigrants and their children are fully subject to American laws. The idea of "jurisdiction" had a specific meaning in the congressional debate surrounding approval of the 14th Amendment. "The language was designed," says historian Garrett Epps, "to exclude two and only two groups: (1) children of diplomats accredited to the United States and (2) members of Indian tribes who maintained quasi-sovereign status under federal Indian law."

Advocates for bloodline citizenship respond: How could the authors of the 14th Amendment have intended to extend citizenship to the children of illegal immigrants when, in 1868, America had no laws restricting immigration and thus no illegal immigrants? This betrays a thin knowledge of history. In 1868, there were a variety of federal laws that restricted naturalization to whites and established waiting periods for citizenship.

Civil War America did not lack for unpopular immigrants. The 1860 Census found that 13.2 percent of the U.S. population was foreign-born. The figure today is 12.3 percent. During the debate over the 14th Amendment, Sen. Edgar Cowan of Pennsylvania complained that birthright citizenship would include Gypsies, "who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen." Others objected that the children of Chinese laborers would be covered. Supporters of the 14th Amendment conceded both cases -- and defended them. Said Sen. John Conness of California: "We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."

The Radical Republicans who wrote the 14th Amendment were, in fact, quite radical. They were critical not just of the Confederacy's view of citizenship but also of the Constitution's original silence on the issue, which, in their view, betrayed the promise of the Declaration of Independence. Their main goal was expressed in birthright citizenship: to prevent a future majority from stealing the rights of children of any background, as long as they were born in America.

Today's dispute over birthright citizenship reveals the immigration debate in its starkest form. Usually, opponents of illegal immigration speak of giving lawbreakers what they deserve. But this does not apply in the case of an infant. Consider two newborn babies at, say, Parkland Hospital in Dallas. One is the child of citizens, the other of illegal immigrants. Critics of birthright citizenship look at the child of immigrants and feel . . . disturbed? Outraged? But why? Do they see a child somehow tainted by illegality? That hardly seems fair. A burden on resources? No more than any other poor child. An alien lacking allegiance? How could they possibly know? Why not a soldier, or an entrepreneur, or, as the Constitution specifically permits, a president?

For nearly a century and a half, Americans have taken the view that these two children at Parkland start their lives as equals. They acquire their rights not because of their parentage or their bloodline or the permission of politicians but because they are born in the United States.

The radical, humane vision of the 14th Amendment can be put another way: No child born in America can be judged unworthy by John Boehner, because each is his equal.

michaelgerson@washpost.com

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