Ending birthright citizenship requires a constitutional amendment

The 1868 clause in the 14th Amendment overturned Dred Scott’s ban on citizenship for African Americans.

Photo: Donald Trump. (Courtesy of Gage Skidmore/Flickr)

A scrum of Republican candidates for president rushed to match frontrunner Donald Trump’s promise to end birthright citizenship this week.

Trump’s pledge came in his first substantial policy proposal of the 2016 campaign, which would also attempt to deport over 11 million undocumented persons from the country and force Mexico to pay for a higher wall along the border.

Longshot candidates Bobby Jindal, Louisiana’s governor, and South Carolina Senator Lindsey Graham both followed Trump’s lead and came out against the idea that all people born in the U.S. should be citizens. But Wisconsin Governor Scott Walker, a candidate who isn’t stuck under one percent in the national polls, also came out against birthright citizenship. Walker has tried to build a bridge between the GOP establishment and more reactionary base voters, which may explain his new position.

Trump and conservative voters who oppose birthright citizenship ignore that it would be a difficult policy to change. Unlike most immigration issues, birthright citizenship is written into the constitution, as the first clause of the 14th Amendment. The clause overturned the pre-Civil War Dred Scott v. Sandford Supreme Court decision that refused citizenship to African Americans.

Stephen Yale-Loehr at Cornell University Law School says that most members of the legal community agree that ending birthright citizenship would require a constitutional amendment. In a recent CBS News article, Yale-Loehr said that winning the two-thirds majorities in Congress and ratification by 38 states necessary for an amendment would be “almost impossible.”

The Supreme Court settled the legal debate in 1898. Wong Kim Ark, a native citizen born to Chinese parents, sued the government after immigration officials refused his re-entry from China based on anti-Chinese immigrant laws. The Court found that the citizenship clause applied to everyone born in the United States and that Congress could not make any laws that would abridge birthright citizenship.

The GOP also ignores that birthright citizenship was one of its own crowning achievements, which Reconstruction-era historian Eric Foner says was based on values of “inclusiveness and openness.”

Congressional Republicans passed birthright citizenship twice over President Andrew Johnson’s vetoes.[1]

Republican presidential candidate Donald Trump at the Conservative Political Action Conference in February 2015. (Gage Skidmore/Flickr)
Republican presidential candidate Donald Trump at the Conservative Political Action Conference in February 2015. (Gage Skidmore/Flickr)

But the Republican Party’s historical values aren’t as important as appealing to the modern conservative voter. Polling shows that Trump’s message works—immigration was the issue that pushed him to the front of the race. Offensive statements about Latinos and women haven’t hurt his strong polling numbers. He has the support of 25 percent of voters in a 17-person field and leads the next candidate, former Florida Governor Jeb Bush, by almost 15 percent.

Now the other candidates are starting to catch on—and throwing away the 2016 election in the process.

Zac Bears can reached at zac@dblstand.com.

[1] Johnson was a southerner and former Democrat elected on the 1864 National Union ticket with Abraham Lincoln.


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