The Next Battle - Push to Deny Citizenship to Arizona Children

The Next Battle - Push to Deny Citizenship to Arizona Children

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Russell Pearce, the legislator from Mesa, Ariz. who sponsored the controversial law SB 1070 against undocumented immigrants, has another objective: taking away citizenship from the U.S.-born children of undocumented immigrants.

"My intention is to push a state law that refuses to acknowledge or to issue birth certificates for children born of illegal aliens, unless one parent is a citizen," Pearce recently wrote in an email to his supporters. "We have to reclaim America."

It wouldn’t come as a surprise if he is able to achieve it, although experts question the constitutional survival of the law.

But there's certainly no lack of support for the idea.

A recent Rasmussen survey found that 58 percent of Americans do not agree that the children of undocumented immigrants should receive automatic citizenship. Among Republicans, that number rises to 76 percent. There is no doubt that Arizona Governor Jan Brewer would sign such a law in her state.

But that does not mean that children born in Arizona wouldn't have a nationality: "It's not paper that grants citizenship but birth on American soil," noted Kathleen Kim, an expert on constitutional law and a professor at Loyola Law School in Los Angeles.

Kim, like other constitutional experts, agreed that a state couldn’t override this protection in the country’s constitution. Amendment 14 of the U.S. Constitution confers citizenship on the principle of jus soli (right of soil).

"The reason the amendment exists and is enshrined in the Constitution is to establish equal rights after the abolition of slavery," said Kim, who explained that the amendment was adopted after the Civil War in 1868, reversing a Supreme Court decision 11 years earlier that found blacks, descendants of slaves, could not be citizens even if they were born on U.S. soil.

But the goal of Pearce and his supporters in various anti-immigrant organizations is to force a legal fight that would put the issue in the national spotlight and, presumedly, bring about its review before the Supreme Court.

In his correspondence with activists, including Anna Gaines of American Citizens United, and Al Garza of Patriots Coalition, Pearce argues that there are reasons to believe that the amendment can be reinterpreted to exclude the children of undocumented immigrants who, he says, "have hijacked the constitutional amendment by coming here and taking advantage of the ‘welfare’ offered by the state."

Kevin Johnson, dean of the law school at UC Davis, believes that Pearce is wasting his time. "If this law were brought to the Supreme Court and a challenge were made to the 14th Amendment, which determines the right to citizenship by birth, I'm 100 percent certain that this right would be upheld by the high court. I have no doubt," said Johnson.

The truth is that it's not the first time a state or even a federal legislator has introduced a similar measure. California Congressman Elton Gallegly tried this in the 90s; most recently, Congressman Nathan Deal of Georgia, in 2009, won the support of 91 sponsors but was unable to advance the project.

Thomas Saenz, president of MALDEF, indicated that the only exception that the Constitution considers is the children of diplomats.

"The amendment is very clear," said Saenz, although he acknowledged that if Congress came to pass a law like that, "it would be more difficult to attack."

Meanwhile, proponents of the idea affirm that it will be easier after the November elections, and if President Obama and Congress refrain from presenting immigration reform until after November, there will be more room for the idea in Congress.
 

Comments

 
Anonymous

Posted Jun 29 2010

I thought the whole point of the 14th amendment was to make sure black slaves and their descendants would be citizens. It's certainly not right that people on tourist visas, foreign students or those in the country illegally can have a child here and then use that child as a reason to claim the "right" to permanent residency.

Anonymous

Posted Jul 3 2010

Well anonymous, you thought wrong. Obviously you didn't understand the point of the 14th Amendment.

Anonymous

Posted Jul 4 2010

Children of illegal aliens should NOT be granted citizenship.

Anonymous

Posted Jul 7 2010

So anonymous where is your family from? Because incase you didnt know caucasion people or anything else that arent natives arent from USA. People came by ships from all over the world and had their children here and their childrens children more children and so on... and if the first children from immigrants wouldnt be concered american then i dont think alot of us would be American

Anonymous

Posted Sep 26 2010

I think people really need to learn what the intent of the 14th amendment was.

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