By MICHAEL COLLINS
Scripps Howard News Service
August 09, 2010
It has been a lonely battle. Until now.
Frustrated by Congress' failure to do anything to curb illegal immigration, a number of prominent lawmakers are suggesting the time has come to consider repealing or rewriting the 14th Amendment to the U.S. Constitution, which guarantees citizenship to anyone born in the United States.
"I don't like tinkering with the Constitution," said Gallegly, R-Calif. But, "we have people who are violating the law to come here just for that benefit (of citizenship). And it truly is a benefit."
The 14th Amendment, ratified in 1868 to guarantee citizenship to children of former slaves and other immigrant communities, declares that all people born or naturalized in the United States and "subject to the jurisdiction thereof" are citizens.
But opponents of illegal immigration say many foreigners are taking advantage of the amendment's citizenship clause in a way in which it was never intended.
Many, they say, cross the borders illegally for the sole purpose of giving birth in the United States, believing they will then be allowed to petition for visas to stay in the country because their children are American citizens.
Advocates for Latino groups and immigrants' rights say ending automatic citizenship for children born to undocumented immigrants would strike at a core American value and would do little to curb illegal immigration since most come to the country looking for a job. They also suggest Republicans are bringing up the issue now in an effort to win votes in this fall's elections.
"The right wing knows they are not going to get the immigrants kicked out, but they have a certain agenda," said Jim Hensley, Ventura County, Calif., deputy district director for the League of United Latin American Citizens.
"They want to keep them as second-class citizens so they can browbeat them that much more and they won't be able to earn rights," Hensley said.
Gallegly, who has spoken out against illegal immigration for years, first introduced legislation to end automatic citizenship for children of illegal immigrants in 1991. The proposal went nowhere. He has filed similar bills through the years, only to watch them die, usually without even getting a hearing. His most recent bill, filed last year, had just one co-sponsor, Rep. John J. Duncan, R-Tenn.
Though still considered a long shot, the concept started to gain attention last week when Sen. Lindsey Graham, a South Carolina Republican who had been a lead negotiator on immigration reform, said he might file a bill to end birthright citizenship for children of illegal immigrants.
Other prominent Republicans quickly came forward and said it's an idea Congress should consider. They include Senate Minority Leader Mitch McConnell of Kentucky; Sen. John McCain of Arizona, the party's presidential nominee in 2008; Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee; and Sen. Jon Kyl of Arizona, the Senate's No. 2 Republican.
Many legal experts say the only way to end automatic citizenship would be to amend the Constitution, which could take years and probably would not be successful. Constitutional amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states.
But lawmakers could also try to end birthright citizenship through legislation. That approach would likely focus on the 14th Amendment phrase "subject to the jurisdiction thereof." Congress could pass a law declaring that illegal immigrants are not "subject to the jurisdiction" of the United States because they entered the country illegally, thus making their children ineligible for citizenship.
That, however, would be a stretch and would almost certainly result in a prolonged battle in court, said Peter Spiro, a professor and citizenship scholar at Temple University School of Law in Philadelphia.
"If I were handicapping it," Spiro said, "I would be willing to bet some serious money on the court finding the (citizenship) rule to be a constitutional one."
Only a handful of countries bestow citizenship upon anyone born within their borders. Besides the United States, birthright citizenship is in practice in Canada and some Latin countries, including Brazil, Mexico, Venezuela and the Dominican Republic, but nowhere in Europe.
Still, many members of Congress are unwilling to end birthright citizenship.
The 14th Amendment "has long served as the cornerstone for civil rights in our country," said Rep. Lois Capps, D-Calif., "To suggest it should be repealed or altered is an insult to the tremendous strides the United States has made in the 20th century on civil rights."
"Frankly," she added, "I wish the Republicans calling for a repeal of this amendment would stop the posturing and instead concentrate their efforts on real immigration reform."
Though he has been pushing the issue for years, Gallegly agreed that birthright citizenship is part of a much bigger picture. "There are a lot of other problems with our immigration system that need to be addressed more aggressively than that, like the need to deport committed felons," he said.
But, "I think the Constitution should at least be questioned," he said. "Because I don't think we are conducting business on that (citizenship) issue that is consistent with the intent of the 14th Amendment."
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