You Can't Mess With Birthright Citizenship. The Law Isn't on Your Side.

on Dec 17, 2024

SAN DIEGO -- If it ain't broke, don't fix it.

For the purpose of this discussion -- which will be guided not by nativist outrage but by common sense --"it" shall be defined as the 14th Amendment to the U.S. Constitution. Adopted in 1868, the amendment has been in good working order ever since.

In Section 1, it declares: "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."

Those 28 words are straightforward. It's not easy to misunderstand their meaning, unless you're trying really hard to advance a restrictionist agenda. If your goal is to keep out or remove as many nonwhite people as possible to Make America White Again, you're not going to like the idea that "all persons born ... in the United States" includes the U.S.-born children of undocumented immigrants.

President-elect Donald Trump has threatened to begin mass deportations, and yet he hasn't provided the details. Forcibly removing millions of undocumented immigrants is a complicated business.

An additional complication is the U.S.-born children of undocumented immigrants. As U.S. citizens, they have every right to be in the United States. This is their country.

Scenario No. 1: If mom and dad are here illegally and they get deported, but their children stay on this side of the border, it won't be long before the parents cross again and the family is reunited. Wouldn't you do the same thing?

Scenario No. 2: If we do as Tom Homan, incoming border czar, suggests and deport the entire family, then the whole order is invalid. By what authority can the U.S. government deport its citizens? If U.S. citizenship can so easily be stripped away, it's worthless - for everyone.

In either scenario, things would be much easier if the U.S. government could simply wave a magic wand and treat U.S.-born children of undocumented immigrants as if they were themselves undocumented.

It's revealing that some of the same people who push back against so-called birthplace citizenship will -- when the discussion turns to guns, abortion or religious freedom -- change their tune and advocate for a "strict constructionist" reading of the Constitution.

This bunch is not terribly complex. When conservatives agree with an amendment, they treat the wording as if it is clear as day. When they disagree, they get creative and suggest alternative interpretations.

There are a couple of straws that conservatives like to grasp at in their crusade against birthright citizenship.

For instance, they go back to the wording of the 14th Amendment and latch onto the phase "subject to the jurisdiction thereof." That excludes undocumented immigrants, they say.

They're wrong. If the undocumented weren't "subject to the jurisdiction of the United States," they couldn't be apprehended, detained and deported by U.S. immigration officials. Besides, we're not talking about the undocumented. We're talking about their U.S.-born children, who are -- whether nativists like it or not -- U.S. citizens. If they were not subject to the jurisdiction of the United States, they couldn't get speeding tickets or be forced to pay taxes.

Another ploy that opponents of birthright citizenship use to try to invalidate portions of the 14th Amendment is to drag Black Americans into the fray. The amendment in question, they argue, was never meant to apply to the U.S.-born children of undocumented immigrants. As one of the Reconstruction amendments, it was intended to ensure that freed slaves were recognized as U.S. citizens with all the rights and privileges that come with that recognition.

So what? When one is interpreting the Constitution, what was "intended" doesn't count for much.

The First Amendment wasn't drafted to give the right of free expression to women, who weren't even allowed to vote until the 19th Amendment was approved in 1920. The Second Amendment -- which is always the favorite of conservatives, who appear to have stopped reading after that point -- wasn't put there to give the right to bear arms to Black people, who were enslaved when the Constitution Convention gathered in Philadelphia in 1787. And yet, once the words are on paper, the freedoms they enumerate apply to "all persons."

Somebody must have slept through high school civics. You would think that those who are so eager to tinker with the Constitution would first make sure they understood it.

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To find out more about Ruben Navarrette and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.