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Birthright Citizenship and the 14th Amendment

Written by Dick Pryor on Friday August 20, 2010

StatueofLibertyIn 1868, the states ratified the 14th Amendment to the U.S. Constitution. One of the Reconstruction Amendments, the 14th contains five sections, and now 142 years later, Section 1 is entering the national discussion of immigration reform. A few U.S. Senators, including Oklahoma's Tom Coburn, are supporting holding hearings to determine whether the 14th Amendment should be changed.

Section 1 states:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1 of the 14th Amendment was adopted, in large part, as a response to the U.S. Supreme Court's reviled Dred Scott v. Sandford decision, which held that blacks could not be citizens of the United States. Since the ratification of the 14th Amendment, the first sentence of Section 1 has been construed as conferring American citizenship on all persons born or naturalized in the United States (except for children of foreign diplomats and invading armies). Decades of court decisions have affirmed "birthright citizenship."

Over the last decade, numerous bills have been filed in Congress to repeal or otherwise change birthright citizenship guaranteed under the 14th Amendment. These efforts have failed, but now, modification of Section 1 is gaining some momentum with a handful of Republican U.S. Senators supporting a review of that portion of the Constitution.

In this election year, with immigration a nagging national, if not state, issue, reformers are taking a second look at birthright citizenship. That's why we invited two legal scholars to Oklahoma Forum to discuss the matter.

Andrew Spiropoulos is a professor of constitutional law at the Oklahoma City University School of Law, and Director of the Center for the Study of State Constitutional Law and Government. Randall Coyne is professor of constitutional law, criminal law and procedure, capital punishment, and legal aspects of terrorism at the University of Oklahoma College of Law.

Despite the decades of acceptance of birthright citizenship derived from the 14th Amendment, both professors agreed that the U.S. Supreme Court has not definitely determined whether the citizenship clause has been correctly interpreted. Spiropoulos says one of the biggest questions about the clause concerns the phrase "subject to the jurisdiction thereof." Proponents of change question whether the children of unauthorized immigrants are subject to the jurisdiction of U.S. law (arguing that their parents owe an allegiance to their country of origin, not the United States). On the other hand, opponents of revisiting Section 1 assert that Congress (and the states by virtue of ratification) decided that birth, not descent (status of parents), determines citizenship.

The issue leads to some interesting legal and ethical arguments which are sure to spur vigorous debate. How would the 14th Amendment be changed, and through what procedure? Can Congress change the Constitution by statute? (Some legal scholars including influential Judge Richard Posner say yes.) What happens to the fabric of the nation if one of its basic tenets, in place for more than 140 years, is erased? What would happen to the Constitution if Congress and the President could overrule portions of the Constitution through the legislative process? Would other Constitutional revisions follow? Would revision efforts lead to a cataclysmic collision of the executive, legislative and judicial branches?

Part theoretical, part legal, part practical, this is the kind of discussion that we like to provide to the citizens of Oklahoma (however you may define them). Coyne fears that changing the 14th Amendment could lead to more legislative nibbling around the edges of other parts of the Constitution. While there may be other, better ways of handling concerns over immigration policy, Spiropoulos says the issue of birthright citizenship is not going away. In fact, he thinks efforts to change birthright citizenship may become more intense in the political arena over the next few months and years.

On the Oklahoma Forum web site we've provided links to various reference materials that will help you learn more about the 14th Amendment and birthright citizenship. I invite you to read them, and reach your own conclusions about this fascinating issue. And, if you have an opinion, let us know by posting a comment. Thanks for reading.

Until next time,

Dick Pryor

Photo Courtesy of Damon Gardenhire
Pictured L-R: Dick Pryor, Randall Coyne, Andrew Spiropoulos


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