BY: CASSANDRA PIERRE
On August 16, 2015, Republican presidential candidate Donald Trump stirred controversy when he announced his immigration policy.[1] Mr. Trump proposed amending the Constitution to end birthright citizenship for children of undocumented immigrants.[2] He argued that birthright citizenship “remains the biggest magnet for illegal immigration.”[3] Opponents of the new proposal reason that birthright citizenship is a constitutionally-protected right, irrespective of the legal status of a child’s parents.[4]
The Fourteenth Amendment to the U.S. Constitution provides that “[a]ll persons born and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”[5] Thus, pursuant to the Constitution, anyone born in the United States is a U.S. citizen based on right of land; this mode of citizenship acquisition at birth is known as jus soli.[6] In addition to constitutional jus soli, the Immigration and Nationality Act extends birthrightcitizenship to children of U.S. citizens born outside of U.S. territory.[7] This blood right to U.S. citizenship at birth is called jus sanguinis.[8]
Surprisingly, the original Constitution failed to define citizenship.[9] Therefore, the means of transmitting citizenship remained unclear throughout the nation’s early years.[10] In 1790, Congress passed legislation that extended citizenship by naturalization to free white aliens,[11] and citizenship by birth to qualified children born outside of the United States whose parents were U.S. citizens.[12] Although the new legislation addressed the issue of citizenship acquisition to some extent, it overlooked American Indians, slaves, free blacks, and the children of immigrants.[13] In 1857, the U.S. Supreme Court held that free blacks born in the United States were not American.[14] Following the Civil War, however, Congress amended the Constitution by extending citizenship to all persons born in the United States.[15]
Jus soli is a fundamental right, a cultural heritage, and a symbol of equal liberty. Ending jus soli for a class of people would mean rehashing the days when American Indians, blacks, and slaves were nationless. In the wake of the racial tension plaguing our nation, blacks in particular need not to be reminded that they were once noncitizens of their country. The United States prides itself in being a champion of social justice; however, social justice is not achieved when the sons and daughters of this nationhave no place to call home.
If social justice and fundamental rights are not compelling enough, population growth is also an important consideration in preserving the birthright guarantees of the Fourteenth Amendment. Developed countries including Denmark, Germany, and Japan are facing drastic population decline.[16] Despite the enormity of the aging Baby-Boom population, the United States is believed to fight the trend facing its fellow developed nations by remaining young and vibrant demographically through its immigration dynamics.[17]
Rather than repealing jus soli, the issue of illegal immigration should be approached by initiating a comprehensive immigration reform. Such reform should include measures to secure the borders, increase penalties for employers who knowingly hire undocumented immigrants, and allow the sheer number of undocumented immigrants who are already within our borders to remain in the country legally if they meet certain conditions. There seems to be a misconception that undocumented immigrants receive an automatic path to citizenship when they procreate in the United States, but this is not the case. In fact, children of undocumented immigrants must wait until they turn 21 to become eligible to file a petition for permanent residence on behalf of their parents.[18] If Mr. Trump’s goal is to discourage illegal immigration by ending birthright citizenship for the offspring of undocumented immigrants, a less drastic solution could beto deny the undocumented the opportunity to obtain legal status through their American-born children.
Jus soli is the law of the land. It shall not be overturned for political gain or to tackle issues that can be addressed through other means. There is no excuse for rejecting our traditional values, altering our well-entrenched principles, and changing our identity.
[1] Marc Wiggins, Trump Stokes Controversy over Birthright Citizenship, Kvue Abc (Aug. 21, 2015, 6:55 PM), http://www.kvue.com/story/news/politics/2015/08/21/trump-stokes-controversy-over-birthright-citizenship/32148295/.
[2] Nick Corasaniti, Trumps Releases Plan on Illegal Immigration, Calling for Stricter Enforcement, N.Y. Times, Aug. 17, 2015, at A:14.
[3] Immigration Reform that Will Make America Great Again,Trump, https://www.donaldjtrump.com/positions/immigration-reform (last visited Sept. 8, 2015).
[4] Eric Bradner, Jeb Bush Opposes Donald Trump on Birthright Citizenship, Cnn (Aug. 18, 2015, 6:10 PM), http://www.cnn.com/2015/08/18/politics/jeb-bush-donald-trump-birthright-citizenship-2016/index.html.
[5] U.S. Const. amend. XIV, § 1, cl. 1 (emphasis added).
[6] Thomas A. Aleinikoff et Al., Immigration and Citizenship: Process and Policy 38 (7th ed. 2012).
[7] 8 U.S.C. § 1401 (c), (d), (e), (g), (h) (2014); 8 U.S.C. § 1408 (2) (2014); 8 U.S.C. § 1409 (2014).
[8] Aleinikoff, supra note 6.
[9] Id.
[10] Id.
[11] Id. at 106.
[12] Id. at 50.
[13] Id.
[14] Scott v. Sandford, 60 U.S. 393, 404 (1857).
[15] Aleinikoff, supra note 6, at 50.
[16] Fareed Zakaria, GPS, Cnn (Aug. 14, 2015, 10:00 AM), http://transcripts.cnn.com/TRANSCRIPTS/1506/14/fzgps.01.html.
[17] Id.
[18] 8 U.S.C. § 1151 (b) (2) (A) (i) (2014).
