'The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth. Although the doctrine was initially embraced in early American jurisprudence, the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizenship to the descendents of slaves. Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law.
When the House of Representatives first approved the measure that would eventually become the Fourteenth Amendment, it did not contain language guaranteeing citizenship. On May 29, 1866, six days after the Senate began its deliberations, Senator Jacob Howard (R-MI) proposed language pertaining to citizenship. Following extended debate the next day, the Senate adopted Howard’s language. Both chambers subsequently approved the constitutional amendment without further discussion of birthright citizenship, so the May 30, 1866 Senate debate offers the best insight into Congressional intent.
Senator Howard’s brief introduction of his amendment confirmed its plain meaning:
Mr. HOWARD. … This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
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The wisdom of the Reconstruction framers in placing the conditions of citizenship above majority action was confirmed when exclusionary immigration laws were passed just after the Fourteenth Amendment was ratified. Had the racial animus of the Chinese Exclusion Laws, passed in the 1880s, been incorporated into the text of the Citizenship Clause, the amendment would be a source of shame rather than an emblem of equality.
The current, inflammatory invocation of “anchor babies” by opponents of birthright citizenship further confirms the good judgment of the framers of the Fourteenth Amendment in placing the question of citizenship beyond “consent” of the majority. Indeed, claims of which immigrants were “worthier” of citizenship than others were present at the time the Citizenship Clause was enacted. In his veto message, President Johnson objected to the discrimination made between “worthy” foreigners, who must go through certain naturalization procedures because of their “foreign birth,” and conferring citizenship on “all persons of African descent, born within the extended limits of the United States,” who Johnson did not feel were as prepared for the duties of a citizen. The drafters of the Fourteenth Amendment rejected such distinctions, and instead provided us with a Constitution that guarantees equality and grants citizenship to all persons born in the United States, regardless of color, creed, or origin. The text of the Citizenship Clause grants automatic citizenship to all persons born on U.S. soil so that minority groups do not need to win a popular vote to enjoy the privileges and immunities of U.S. citizenship—they simply have to be born here. . .
the idea that the conditions of citizenship could be modified by the “consent” of Congress, as advocated by those who believe Congress may legislate away birthright citizenship for children born to undocumented immigrants, would have been anathema to the Reconstruction framers. Rather than leaving it to the “caprice of Congress,” the framers of the Fourteenth Amendment intended to establish “a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation.” The history of the Citizenship Clause demonstrates that the Reconstruction framers constitutionalized the conditions sufficient for citizenship precisely to enshrine automatic citizenship regardless of whether native-born children were members of a disfavored minority group or a welcomed band of ancestors. . .
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Attempts to amend, abolish, or similarly undermine the Fourteenth Amendment’s provision regarding birthright citizenship should be rejected by lawmakers for at least five reasons:
It would be the first time since the infamous “three-fifths clause” that the Constitution has been written to restrict civil rights rather than expand them.
Altering this provision, especially through legislation, would encourage further subjecting of individuals’ rights to the political process, opening a Pandora’s Box that could significantly redefine the rights of current citizens. This would undermine the founders’ intent in creating the Bill of Rights, which places fundamental rights beyond the boundaries of simple majority rule in order to protect them against a sometimes-fickle public opinion.
It would strengthen the hand of nativist and racist organizations.
It would create a two-tiered society consisting of those with full access to the political, economic, and social institutions of the nation and those permanently excluded from them. American-born children of undocumented immigrants, for example, would be unable to obtain a legal job, a driver’s license, or financial aid for college. The result would be a class of stateless peoples—those with no legal U.S. residency or hope of legal residency, yet with no real ties to any other nation. Such people would be forced to work in underground economies and live in unstable, clandestine conditions, a situation that encourages crime and discourages becoming part of the broader American culture. It remains unclear what exactly would happen to such stateless persons if the United States were to catch and deport them, as no other country would be legally obliged to accept them.
Finally, there is no reason to believe that eliminating birthright citizenship would be effective in stopping or slowing illegal immigration; for there is little evidence that attaining citizenship is the main incentive for immigration to the United States. Most undocumented workers come to the United States in search of economic opportunity, with the intention of returning home. “Anchor babies” are a fictitious problem that has little actual impact on immigration trends today.
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Eliminating the birthright citizenship rule would affect not only the citizenship of the children of unauthorized immigrants, but the citizenship of the children of more than three hundred million American citizens. After the elimination of birthright citizenship, all American parents would, going forward, have to prove the citizenship of their children through a cumbersome bureaucratic process. The United States has no national registry of its citizens, and most Americans today rely on the birthright citizenship rule to establish their citizenship. Documents evidencing birth in America are created by thousands of state and local governmental entities as well as the Department of Homeland Security and the Department of State. In Barack Obama’s case, for example, his birthright citizenship is proved by means of a birth certificate issued by the State of Hawaii and showing his birth in Honolulu; he subsequently obtained a U.S. passport. Many Americans, however, do not routinely obtain any Federal governmental documents—such as a passport—confirming their citizenship status. A survey by the Brennan Center at New York University found that more than 13 million American adults cannot easily produce documentation proving their citizenship. At least birthright citizenship can be proved by producing a valid U.S. birth certificate, something that most birthright citizens can obtain without too much expense or difficulty if they are forced to do so.
If birthright citizenship were eliminated, however, those born in the United States would lose their access to easy proof of citizenship. Instead, they would find it necessary to turn to the exceptionally complex U.S. rules for citizenship by blood (the majority would be unable to qualify for the immigrant visas necessary as a prerequisite for citizenship by naturalization). Yet the rules for derivative citizenship are so complicated that it can take an experienced immigration attorney more than an hour to determine whether someone is a U.S. citizen by derivation. The lawyer must inquire about grandparents as well as parents, about marriage dates and the birth dates of ancestors, about the place of birth, and about the time that one’s parents or grandparents spent in the United States prior to one’s birth.'
http://www.immigrationpolicy.org/perspectives/made-america-myths-facts-about-birthright-citizenship
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