Is it time to reconsider birthright citizenship?

Thursday, January 6, 2011; 5:30 PM

There is nothing sacred about American birthright citizenship. But there also is no pressing reason to change two centuries of constitutional law and tradition.

The Republican-led rebellion rising out of state legislatures to redefine the 14th Amendment and end guaranteed citizenship to anyone born in the country is a distraction of epic proportions.

Instead of helping fix the nation's immigration system, the insurrectionists are recklessly challenging the national government's power to decide who is an American and the system of federalism itself.

The model state citizenship law, plus a novel "compact" creating different types of birth certificates, which were released this week by Republican legislators from Arizona, Pennsylvania, Oklahoma, South Carolina and Georgia - with legislators in perhaps 40 states said to be in tow - are unprecedented in their coordinated state attack on federal power.

Such compacts require congressional - but not presidential - approval to cede authority to the states, and they are too clever by half. They were designed in large part by Kris Kobach, a law professor and Kansas's secretary of state-elect who was the intellectual force behind the Arizona "papers please" law that already was largely suspended by a federal judge for treading on federal power.

The model compacts go much further. As James C. Ho, a former solicitor general of Texas, notes, they are so blatant an incursion on the federal prerogative over citizenship that they almost surely will be rejected out of hand by the courts on federalism grounds, without even addressing the birthright matter. It will all have been a hugely irresponsible waste.

That's too bad, because there is a legitimate debate to be had on birthright citizenship, though one suspects that many of the insurrectionists are more interested in sucker-punching President Obama and the Democrats.

Limiting birthright citizenship makes sense on the surface. In a modern world of easy transportation, why should a child born to a legal or illegal visitor automatically be an American citizen? The 14th Amendment, ratified in 1868, grew out of guaranteeing citizenship to freed slaves after the Civil War and to the children of immigrants when the nation was still wide open to settlement. Few nations are so generous today.

The Supreme Court has regularly given a blanket interpretation to the 14th Amendment, which gives citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."

In 1898, as the nation was trying to force out Chinese immigrants, the court ruled in the case of a Chinese American that the amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens."

In 1982, when Texas tried to evict the children of unauthorized immigrants from public schools, both the majority and dissenters agreed that the U.S.-born children of unauthorized immigrants were protected by the 14th Amendment. Three years later, the court specifically underlined that such children were U.S. citizens.

Still, as much as immigrant advocates oppose giving any ground, the president would be wise not to fall on his sword defending the court's interpretation. Rather, he should make reasonable constitutional arguments that caution moving with care, and reach out to a Republican senator who has been doing the same: Lindsey Graham of South Carolina. Last year, Graham called for hearings to explore whether and how to proceed on changing birthright citizenship, including amending the Constitution, a long-term process.

Instead of vilifying any consideration of birthright citizenship as "racist", immigrant advocates would do better to cull the responsible Republicans from the extremists, which includes some Democrats.

Of course, there would be no real issue of birthright citizenship if we had comprehensive reform that ended the current high level of illegal immigration. Meanwhile, reports of tourists who come here expressly to have an American-born child may be galling, but they are anecdotal and the numbers are too tiny to justify the extreme action of the state measures.

State legislators and voters are right to be frustrated with Washington's inaction in fixing our immigration system, but "Washington" is the representatives and senators we sent there. We need to make them do their jobs.

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