Arizona seeks to repeal 14th amendment

There is this apparently radical idea in the United States that certain laws, like the US Constitution, applies to everyone in the country and that states cannot ignore those national laws. That’s one of the issues that sparked the Civil War. The “states rights” people lost. But they haven’t given up their battle.

The Civil War was about the right of states to allow slavery. The Union won and slavery was outlawed.

The 14th Amendment to the US Constitution was an outcome of the Civil War, which made it clear federal laws and standards indeed did apply to states. One of those Civil War era national mandates was that anyone born in the United States was a citizen.

[Other elements of the 14th Amendment make federal Constitutional rights such as the First and Second amendments apply to states, as well as the 5th Amendment right against unlawful search and seizure and the taking of property without due process of law…stuff most people would think is a good idea.]

Now we have State Senator Russell Pearce, the author of SB 1070 (which is being challenged as a usurpation of federal law by a state) pushing for a new state law that will deny babies born of an illegal parent US citizenship rights.

Obviously if the state passes Pearce’s proposed law, the feds will make quick work of this effort by getting a federal judge to remind Arizona it is still part of the United States.

But what the heck…Pearce and his buddies Joe Arpaio and Arizona Governor Jan Brewer are making political hay thumbing their noses as the federal government, while trying to recreate the Confederate States of America.

Read this story from the Arizona Republic:

14th Amendment faces challenge from immigration hardliners

by Alia Beard Rau on Sep. 12, 2010, under Arizona Republic News

For years, Arizona lawmakers have targeted illegal immigrants. In their next session, legislators will focus on the children of illegal immigrants.

Two prominent lawmakers want to change the way those children are granted citizenship.

The pair plan to introduce legislation that targets the children, possibly by adding notation on their state birth certificates that would identify them as children of illegal immigrants.

Such legislation, the lawmakers hope, could trigger a review of the Supreme Court’s interpretation of the 14th Amendment, which now grants citizenship to anyone born inside the U.S.

State Sen. Russell Pearce, R-Mesa, and Rep. John Kavanagh, R-Fountain Hills, sponsored Senate Bill 1070, the controversial immigration law that passed this spring.

The details of their new effort have not been made final, but the two say the coming legislative session is the right time to focus on citizenship and further slow the influx of illegal immigrants into the United States.

“We’ll keep working until aliens quit coming into our country and taking advantage of taxpayers,” Pearce said.

They plan to propose the legislation in January. Kavanagh said whatever the change, it would not be retroactive.

“The intent will be to trigger a review of the issue by the federal courts,” he said.

States have oversight over birth certificates and, to an extent, over who can receive state services, but citizenship is a federal issue. Creating different birth certificates, or giving different people different levels of access to state services based on information on birth certificates, would open the state to federal lawsuits. The lawsuits could argue that the state is pre-empting federal authority and violating federal laws that say all citizens are due equal protection.


The 14th Amendment of the U.S. Constitution was ratified in 1868 and states that “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.”

The amendment’s primary intent was to guarantee citizenship to African-Americans, particularly former slaves. But the question of whether the authors also intended to allow the children of illegal immigrants to become citizens has been a matter of debate since its inception.

The dispute focuses on the phrase “subject to the jurisdiction thereof.”

Opponents of birthright citizenship argue that illegal immigrants are not subject to U.S. jurisdiction. Others counter that the words merely were meant to exclude U.S.-born children of foreign diplomats or of occupying enemy armies.

In 1898, the U.S. Supreme Court settled the matter by ruling that the U.S.-born son of an immigrant Chinese couple did become a citizen at birth under the 14th Amendment despite the fact that at the time his parents were ineligible for citizenship.

That ruling stands today and is what opponents of birthright citizenship want the Supreme Court to reconsider.

The opponents of the Supreme Court’s interpretation say it has spurred citizens of other nations to come to the United States to give birth. Those children then have access to social services and can provide a more direct route for their parents to become citizens. Having an immediate relative who is a citizen can speed up the lengthy process.

According to a study released in August by the Pew Hispanic Center, about 340,000 children were born in the U.S. to illegal immigrants in 2008. Most were born to parents who had lived in the U.S. for more than a year.

Pew researchers could not say how many of those children were born in Arizona but did say that about 4 percent of the nation’s illegal immigrants are in Arizona. If 4 percent of the 340,000 children in the U.S. born to illegal immigrants are also in Arizona, that would equate to about 13,600 children born in Arizona in 2008.

Kavanagh said his primary concern is not parents using their children to become citizens but the amount of money the children cost taxpayers because, as citizens, they have access to social services such as health care and welfare.

There are a number of Arizona taxpayer-funded services that non-citizens are eligible for, such as public school. But only legal residents can get food stamps, cash assistance under the needy-families program, a driver’s license and in-state college tuition.

“A parent does get a slight edge in getting citizenship later, and this is a reward for bad behavior,” Kavanagh said. “But I think the economic issue is the more compelling reason to stop the activity.”

Possible proposals

Some advocates have proposed repealing or changing the 14th Amendment, but both Kavanagh and Pearce have said they find that unnecessary. They want the Supreme Court to reconsider its interpretation.

To make that happen, Kavanagh said he and Pearce are focusing on making a change in state law or procedure to spur lawsuits that would end up before the high court.

Jack Chin, a University of Arizona James E. Rogers College of Law professor whose specialties include immigration law, said states do have some authority to determine what information is included in a birth certificate.

“But do they have the authority to say no birth certificates for Black people or people born on Tuesday?” he said. “The answer to that is no. They can’t create a system of tiered citizenship.”

He said that would likely result in legal challenges.

Previous efforts in Arizona to change the way the state handles birth certificates have failed.

In 2007, an initiative called the Birthright Citizenship Alignment Act that would have required hospitals to check the citizenship of the parents of newborns failed to make the ballot.

In 2008, former state Sen. Karen Johnson, R-Mesa, proposed asking voters to change the way the state issues birth certificates. Birth certificates would have still been given to children of illegal immigrants, but the certificates would have stated “that the child was born to parents who were not in this country legally and that the child is not eligible for benefits that require United States citizenship.”

Pearce, a state representative at the time, was one of the sponsors.

The bill was never given a committee hearing.

Kavanagh couldn’t say whether the new legislation would be similar to what Johnson proposed. He also did not know yet who would be charged with confirming a parent’s legal status should he and Pearce take that approach.

He said he hasn’t polled the state Legislature to find out how much support their new effort will have.

But the timing may be right.

In the most recent session, immigration and gun-rights bills that foundered in years past became law thanks to a Legislature dominated by conservative Republicans and a new Republican governor.

November elections aren’t expected to change the Legislature much. Voters in the August primary predominantly chose current lawmakers – many of whom backed SB 1070 – over outside challengers.

Gov. Jan Brewer faces Democrat Attorney General Terry Goddard in the Nov. 2 governor’s race. Polls indicate that she is enjoying a double-digit lead. Experts say much of the credit for that lead goes to her support of SB 1070 and border enforcement.

Kavanagh said Arizona can no longer wait around for the federal government on immigration issues.

“We waited for Congress to secure the border, and that never happened,” Kavanagh said. “We think Congress needs a little shove.”


Opponents of changing the way a state issues birth certificates say such a change would require every parent of a child born in that state to prove his or her own legal status in some way before the child could receive the benefits of citizenship.

Margaret Stock, an Alaska immigration attorney, said parents would have to apply to some sort of federal agency or court to prove that child’s citizenship, “which can sometimes take more than a year, is very expensive and is fraught with error.”

Michele Waslin, a senior policy analyst with the Washington, D.C.-based Immigration Policy Center, said changing the birthright citizenship laws will not solve the problem of illegal immigration.

“It actually increases the number of illegal immigrants because children would be born in the U.S. with no legal status,” she said.

Carlos Galindo-Elvira, vice president of philanthropic and community relations at the non-profit community organization Valle del Sol, said he didn’t know how many children of illegal immigrants could be affected but said it would be “devastating.”

“We’re talking about the most vulnerable and defenseless members of our society,” he said. “What if the infant is in need of health care? This will be a health issue.”

Bill Ong Hing, a University of San Francisco School of Law professor, also said the effort could backfire.

“The children born here are every bit the U.S. citizens you would want. They quickly become Americanized. They learn English. They work hard,” he said. “How foolish it would be to threaten those youth with different standards. They are our future.”



About Hugh Holub

Attorney and writer.
This entry was posted in 14th amendment, immigration law reform. Bookmark the permalink.

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