On March 27, 1866, President Andrew Johnson sent a message to Congress vetoing the landmark civil rights bill it had just passed. Among the provisions “which I cannot approve,” Johnson wrote, was the first section, which stated, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Not only would this grant of birthright citizenship make citizens out of “the entire race designated as blacks,” Johnson complained, it would also make citizens out of “the Chinese of the Pacific States, Indians subject to taxation, [and] the people called Gipsies.” He wouldn’t sign it.
So the Radical Republicans of the 39th Congress passed the Civil Rights Act of 1866 over the president’s veto. As Sen. Lyman Trumbull (R-Ill.) declared from the Senate floor, “the child of an Asiatic is just as much a citizen as the child of a European.” Several months later, those same Republicans introduced legislation that became the 14th Amendment to the U.S. Constitution, which, among other things, declared, “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.” Upon ratification in 1868, the 14th Amendment’s Citizenship Clause specifically overturned the Supreme Court’s notorious 1856 decision in Dred Scott v. Sandford, which held that persons of African descent could never be U.S. citizens. It was a magnificent achievement for the young Republican Party.
Today, birthright citizenship is again under fire, only this time the attacks are coming primarily from the party that first put the guarantee into place. "We're the only, or one of the few, developed nations in the world that allows somebody to come here illegally, give birth to a child, and then have the child be a legal citizen of our country," Republican Gov. Tim Pawlenty of Minnesota recently complained, perhaps forgetting that Republicans typically oppose efforts to make the U.S. look more like other parts of the world.
And he’s not alone. Last weekend, House Minority Leader John Boehner (R-Ohio) told NBC’s Meet the Press that overhauling the 14th Amendment is “worth considering.” It offers an "incentive for illegal immigrants to come here so their children can be U.S. citizens,” Boehner claimed. Senate Minority Leader Mitch McConnell (R-Ky.) has said much the same. “I think we ought to take a look at it—hold hearings, listen to the experts on it,” McConnell told The Hill.
Or McConnell could just take the Constitution at its word. After all, as Sen. Trumbull’s comments and President Johnson’s veto message suggest, the original public meaning of the Citizenship Clause, just like its nearly identical counterpart in the Civil Rights Act, included birthright citizenship. As Sen. John Conness (R-Calif.) declared during the congressional debates on the 14th Amendment, “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law.” Both the supporters and the opponents of the amendment understood it this way. They only disagreed about whether birthright citizenship was a good idea. The Supreme Court then gave its stamp of approval to this understanding in United States v. Wong Kim Ark (1898). So if the GOP wants to nullify the Citizenship Clause, it’ll take a constitutional amendment to do it.
But more importantly, there’s not much evidence that birthright citizenship has anything to do with today’s immigration problems. As Jason C. Riley, a Wall Street Journal editorial board member and author of Let Them In: The Case for Open Borders, points out, immigrants overwhelmingly come to America seeking jobs, not government benefits. “Some 400,000 people enter the country illegally each year,” Riley notes, “a direct consequence of the fact that our current policy is to make available only 5,000 visas annually for low-skilled workers.” Illegal immigration, in other words, “is primarily a function of too many foreigners chasing too few visas.” (For a sobering illustration of that futile chase, see Reason’s “What Part of Legal Immigration Don’t You Understand?”)
Those immigrants aren’t coming here to have babies and they aren’t coming here to abuse social services. As Riley told Reason.tv, immigrants “use welfare at lower rates than natives. I should also add that if your concern is that some immigrants are receiving more in public benefits than they pay in taxes, you should keep in mind that so do 67 percent of Americans.” According to the Pew Hispanic Research Center, based on its study of the 2004 Census, the labor force participation rate for illegal immigrant males (ages 18 to 64) was 92 percent, compared to a rate of just 83 percent for native-born males.
So not only does the Republican push to abolish birthright citizenship require disfiguring the 14th Amendment, one of the party’s greatest political achievements, it isn’t likely to have any discernible impact on the number of illegal immigrants entering the country, since the majority of them are here seeking jobs—something they will continue to do as long as there are employers willing to pay. That’s how supply and demand works.
This whole Citizenship Clause controversy is ultimately just election year posturing designed to excite a few voters. The text of the Constitution deserves more respect than that.