MALDEF

Fear-mongering in Congress

In an attempt to capitalize on anti-immigrant sentiment in this country, Congressmen Lamar Smith (R-Texas) advocates for the elimination of birthright citizenship, a bedrock Constitutional principle with roots over 400 years old.1 To support his argument, Representative Smith uses fear, incomplete data, and incomplete statements.

The doctrine of birthright citizenship is based on the common law principle of “jus soli” – that a person acquires citizenship in a nation by virtue of his birth in that nation or its territorial possessions. Birthright citizenship has been codified in the Fourteenth Amendment of the U.S. Constitution, § 301 (a) of the Immigration and Naturalization Act, and 8 U.S.C. § 1401. In part, the Fourteenth Amendment declares that “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.” To derail this fundamental principle Representative Smith would need a Constitutional amendment.

A basic understanding of civics reveals that amending the Constitution would first require a proposal by two-thirds majority vote in both the House and the Senate or by two-thirds of state legislatures.2 Then, an amendment requires approval of three-fourths of all the states.3 Since 1789, over 10,000 Constitutional amendments have been introduced in Congress and only 27 were ultimately ratified.4 Representative Smith seems to ignore, or overlook, the very same Constitutional principles he has sworn to uphold every two years.

Representative Smith asserts that the framers of the 14th Amendment “never sought to guarantee citizenship to children of illegal immigrants.”5 To support his assertion, Representative Smith quotes Senator Jacob Howard (R-MI), who proposed the language on citizenship, when in 1866 he stated that the citizenship "will not, of course, include persons born in the United States who are foreigners."6 Had Representative Smith finished the quote, it would have read “foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of person.”7 In relying on this legislative history, the Supreme Court found that “the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches to every corner of a State’s territory.”8

In the 1898 case of United States v. Wong Kim Ark, the Supreme Court held that “a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and residence in the United States,” was, by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment. Subsequent decisions have upheld the court’s standard, and have held that no person should be deprived of citizenship because of his or her parents’ status as non-citizens.

Representative Smith also “two-steps” around the assertion that undocumented immigrants are an economic drain to the state of Texas by presenting “fuzzy math.” He states that “taxpayers foot the bill” for healthcare costs to undocumented immigrants.9 Representative Smith then expands the scope of his argument nationally by stating that social services for undocumented immigrants cost Americans $1.1 billion a year.10 The Congressman pointed to, without actually citing, a RAND Corporation study which did find $1.1 billion are spent annually on a national level for the health care of undocumented immigrants. Curiously, Representative Smith overlooked an official report issued by his home state. The state of Texas found that undocumented immigrants produced $1.58 billion in state revenues in FY05, and found that the absence of undocumented immigrants in Texas would have caused a loss to the gross state product of $17.7 billion.11

Representative Smith suggests that birthright citizenship is a threat to our national security because of one isolated incident where Yaser Esam Hamdi, a U.S. citizen, “was captured in Afghanistan fighting against American forces as a member of the Taliban.”12 This strategy, of conflating illegal immigration and terrorism, is widely used but yet to be proven. It should be made crystal clear for Representative Smith, so the next time he points blame at the southern border, that of the 373 charged, convicted, and/or killed terrorists in Western Europe and North America, “not a single subject entered from Mexico…[while] 26 subjects [resided] in Canada.”13

Finally, Representative Smith argues that it is not being born on U.S. soil that makes a person American, but rather it is exhibited by “contribution, cultural assimilation and allegiance.”14 Numerous reports, from the state of Texas to the White House have found that undocumented immigrants contribute to the economy as consumers and as taxpayers. In 2004, undocumented immigrants contributed $7 billion to Social Security and $1.5 billion to Medicare to which they have no legal claim.15 Further, social science data points to the fact that immigrants are assimilating as fast as previous generations of immigrants. While immigrant parents may struggle with learning a new language, 91% of second-generation Hispanics can speak English well, as can 97% of third-generation Hispanics.16 If allegiance to this country can be measured in blood, maybe Representative Smith needs reminding that Latinos account for 11 percent of the 4,000 troop casualties in Iraq.17 Many of these brave troops were born to undocumented parents.

Limiting the Fourteenth Amendment is no casual activity. Representative Smith ignores one hundred and ten years of Supreme Court precedent and the U.S. Supreme Court’s clear ruling that the Constitution means what it says: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. Further, the doctrine of birthright citizenship actually goes back 400 years in English common law and was adopted by the Founding Fathers. Abandoning the doctrine would be a radical step, and it would require an amendment to the Constitution that would leave children born in the US stateless or deem them citizens of countries they have never seen.

Representative Smith wants to abolish a core constitutional principle which would require an amendment to the U.S. Constitution. Such an endeavor cannot be taken lightly and at a minimum out of respect for the process and our Founding Fathers, Representative Smith needs to base his position on a full account of the facts and not fear-mongering. _______________________________
1. Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).
2. U.S. Constitution, Article V.
3. Id.
4. See C-SPAN.org. , see also ConstitutionFacts.com
5. Lamar Smith, "'Birthright citizenship' policy backfires, should be abolished," Elpasotimes.com, May 25, 2008
6. Id.
7. Cong. Globe, 39th Cong., 1st Sess. 2545, at 2890 (1866)(emphasis added). For an extensive explanation of the original understanding of the 14th amendment, see James C. Ho's "Defining 'American.'"
8. Plyler v. Doe, 457 U.S. 202 (1982)
9. Id.
10. Id.
11. Carole Keeton Strayhorn, Texas Comptroller, "Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy," December 2006
12. Smith, supra note 5
13. Leiken, Robert S. / Brooke, Steven, 2006: The Quantitative Analysis of Terrorism and Immigration: An Initial Exploration, Terrorism and Political Violence, Vol. 18, No. 4, pp. 503-521. (emphasis added).
14. Smith, supra note 5
15. Michael Maiello and Nicole Ridgway, Alien Nation, Forbes.com, April 10, 2006, citing Douglas S. Massey, Princeton University
16. Shirin Hakimzadeh and D’Vera Cohn, "English Usage Among Hispanics in the United States," Pew Hispanic Center, November 29, 2007
17. PBS, NewsHour, Baghdad Bombing Raises U.S. Casualities in Iraq to 4,000, March 24, 2008

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