Paul Finkelman, Jim Anaya, and Jack Chin on Birthright Citizenship

From the Huffington Post (h/t LHB):

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona’s new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

For centuries, James Anaya’s family lived off land that became part of southern New Mexico. Some of them relocated to Mexico after the United States acquired the territory in 1853. His grandfather, born in Mexico, returned to his ancestral homeland after statehood and his wife to be — James’s grandmother — followed. Both of them entered the United States illegally. Theoretically they could have immigrated legally, because there was no maximum quota on immigration from Mexico until 1965. However, while penniless Europeans were admitted, impoverished Mexicans were routinely turned back. James’s grandparents just moved without any papers and their children, born in the United States, became citizens at birth.

Gabriel Chin’s grandfather immigrated from Guangxiao, China in the period (1882-1943) when the Chinese Exclusion Act prohibited the immigration of racial Chinese. Like many other Chinese men admitted as paper sons, he entered California on the false claim that he was the Chinese-born child of a United States citizen and thus a citizen himself.

Paul Finkelman’s Polish-born grandfather feared being turned back at Ellis Island because of his poor eyesight. At the time people with glaucoma were not allowed into the United States. His grandfather did not have glaucoma, but he did not understand the rules. Immigration inspectors carefully excluded people who they feared could not work, so he took no chances and entered by a clandestine trek through Canada, later regularizing his status. His other grandfather lied about his age at Ellis Island — grounds for deportation — so that he could work when he landed. He later gained his citizenship when he was drafted in World War I, even though he was actually too young to be drafted. The lie brought him into the work force and then citizenship, but it was all in violation of immigration laws.

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either. This raises the spectre of multi-generational groups who are citizens of no nation yet know no other land than the United States. In addition, intentionally or not, most people to be denied citizenship would be of Hispanic ancestry. After centuries of effort to remove race from American law, the overwhelming racial impact would inevitably be divisive.

As legal scholars, we believe it would be a mistake to repudiate the long tradition of birthright citizenship in the United States, as number of Republican leaders want to do. Before the Civil War all white people born in the United States were citizens at birth, even if their parents were aliens. This tradition predated the American Revolution. In fact, some of the complaints against King George III centered on his refusal to allow for rapid naturalization of immigrants to the colonies.

Continue reading