Less than Citizens

Abolishing Birthright Citizenship Would Create

a Permanent Underclass in Our Nation
Sam Fulwood III and Marshall Fitz  May 2011

Introduction

In a move contrary to the most cherished of American values, a band of ultra-conserva-

tive activists are targeting the U.S.-born children of undocumented immigrants—and
others—to score political points. Their stated objective is to overturn a bedrock consti-
tutional right: the right of citizenship by birth on American soil.

Such efforts are unlikely to succeed, but they must be challenged because they strike
at the core of what makes citizenship in this nation so unique, special, and coveted. The fundamental
Rooted in the post-Civil War reforms to reverse the infamous Dred Scott decision and
establish birthright citizenship as a right of the then-recently emancipated black slaves, measure of
the 14th Amendment, ratified in 1868, guarantees that “All persons born or naturalized
in the United States and subject to the jurisdiction thereof, are citizens of the United citizenship in the
States and the State wherein they reside.”
United States is
For all practical and legal purposes, the law is clear and settled. For more than a century,
our nation’s courts have affirmed that the 14th Amendment means what it says—the rooted in the soil
fundamental measure of citizenship in the United States is rooted in the soil on which
an American is born.1 It stands in direct opposition to notions that America is some on which an
sort of country club, a place where the vagaries of politics, prejudices, or popularity may
recognize some and exclude others. Birthright citizenship is a profound American value. American is born.
Still, the matter is not dead in the eyes of some politicians. On January 25, 2011, Sens.
Rand Paul (R-KY) and David Vitter (R-LA) introduced legislation to amend the
Constitution and restrict citizenship to those newborns who can prove that one of their
parents is a U.S. citizen, a legal immigrant, or an active member of the Armed Forces
at the moment of the child’s birth. In what seems a coordinated effort, Republican
lawmakers in the Arizona legislature and other state legislatures introduced bills aimed
at blocking children born in the state to undocumented immigrants—as well as profes-
sional workers and other noncitizens with long-term visas—from claiming a right to

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 citizenship. As Elizabeth Wydra points out for the American Constitution Society for
Law and Policy, “[t]he goal, according to Arizona Representative John Kavanagh, a pri-
mary supporter of the legislation, is “to trigger . . . Supreme Court review of the phrase
‘subject to the jurisdiction thereof ’ in the 14th Amendment.”2

Opportunistic politics helps explain the reasoning behind this attack on the Citizenship
Clause of the Constitution. A broken national immigration system overlapping with a
tepid economic recovery, featuring still-slow jobs growth creates an opening for some
politicians to seek short-term electoral gains by demonizing immigrants. Nonetheless,
numerous conservative politicians and scholars voice grave concerns about the political
and policy ramifications of this tangent.3

Case in point: Linda Chavez, a conservative Republican and chairman of the Center for
Equal Opportunity, believes that such a political gambit is “a terrible idea.”4 She argues
that not only is it bad politics for Republicans to champion a cause that alienates Latino
voters, but “more importantly, ending birthright citizenship would fundamentally “Ending birthright
change what it means to be an American.”5
citizenship would
She’s right, of course. Indeed, many conservative and progressive legal scholars find
common ground on this issue and the implications of backing away from birthright fundamentally
citizenship. University of Baltimore legal scholar Professor Garrett Epps argues:
change what it means
The authors of the Citizenship Clause had seen Southern slavery eat away at the very
idea of democratic government, until it nearly destroyed the United States. They set the to be an American.”
14th Amendment, and its citizenship language, in the American sky as a reminder that
inequality by birth was the doorway to dishonor. – Linda Chavez
Thus, there is an alarming irony in the proposition that the United States should alter
its constitutional system to create a large internal population of native-born noncitizens,
a hereditary subordinate caste of persons who are subjected to American law but do
not belong to American society.

If the children of “illegal aliens” are “illegal” themselves, then we have taken a giant
step toward recreating slavery in all but name. If citizenship is the hereditary gift of the
nation rather than the inheritance of its people, we are drifting back toward a discred-
ited doctrine of Dred Scott. And if state governments arrogate to themselves the power
to decide which groups within their borders “merit” citizenship, the central promise of
the Amendment—paramount national citizenship—has been eviscerated.6

Noted conservative constitutional scholar James Ho, a former solicitor general of Texas,
examined the history of the 14th Amendment and arrived at an even more basic conclu-
sion than Epps. He writes:

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 But nothing in text or history suggests that the drafters [of the 14th Amendment]
intended to draw distinctions between different categories of aliens. To the contrary,
text and history confirm that the Citizenship Clause reaches all persons who are sub-
ject to U.S. jurisdiction and laws, regardless of race or alienage. 7

He also argues that the radical right-wing’s attempt at historical revisionism:

fundamentally violates three values that conservatives typically put forth: the belief in
textualism, that the words of a legal document matter; originalism, that you go with
the original understanding of the Constitution or of a statute and not some subsequent,
evolving concept; and American exceptionalism, that there are just some things about
America and in particular about American law that [are] different than from other
countries, and proudly so.8

It seems implausible, then, that even a conservative Supreme Court would accept the Americans need to
revisionist arguments necessary to end birthright citizenship. What’s more, the high
steps needed to alter the Constitution suggest the conversations about revoking con- call out the cynical
stitutional citizenship are little more than hot air. After all, constitutional changes are dif-
ficult to pass, requiring a two-thirds vote from both the U.S. House of Representatives and opportunistic
and the U.S. Senate and approval by three-fourths of the state legislatures, or alterna-
tively two-thirds of the state legislatures could propose an amendment at a constitu- politicians who
tional convention, a procedure that has never been successful.
are seizing on the
In short, the prospects for changing the nation’s birthright citizenship policies are far-
fetched. Nonetheless, the far right’s vision of this profoundly un-American position on repeal of the 14th
birthright citizenship deserves to be unpacked. Americans need to call out the cynical
and opportunistic politicians who are seizing on the repeal of the 14th Amendment to Amendment to divide
divide our country anew.
our country anew.
In this issue brief, then, we will examine the kind of society and democracy we would
become if the 14th Amendment were amended to once again create a permanent under-
class in our nation, delineating the costs and challenges of such policies if they were to
prove successful. A retreat on birthright citizenship would set in motion a cascading
effect of unforeseen, unintended, and unwanted consequences, among them:

• “Big Brother” in every hospital delivery room—a profoundly costly and intrusive pro-
cess of checking and verifying documents for every baby born in the United States
• A new underclass of less-than-citizens—marginalized from society and weighing on
our future economic competitiveness
• Women burdened with childbearing decisions depending on citizenship parentage—
endangering the newly born and their mothers in our country
• An America that is suddenly and deeply anti-immigrant—contrary to our historical
heritage and core national values

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Without a doubt, amending the 14th Amendment to end birthright citizenship would
create a fundamentally different America, one with dual (and inevitably “dueling”)
classes of residents born here—citizens and less-than citizens. This is a dark vision of
America—one that deserves to be exposed to the full light of day.

“Big Brother” in every hospital delivery room

This nightmare scenario would begin with the Department of Homeland Security If birthright
intruding in every hospital in the nation. Indeed, that is where the bureaucratic morass
must originate. If birthright citizenship were repealed, some sort of federalized birth reg- citizenship were
istry would have to be created and maintained in order to ensure that citizenship status
is allocated properly. Currently, documents evidencing American citizenship are created repealed, some
by a decentralized system, where thousands of state-and-local governmental entities
produce these documents.9 Instead of the current system, the new system would feature sort of federalized
a process requiring every parent to produce documents establishing the parent’s citizen-
ship or immigration status at the moment of the child’s birth. birth registry would
Let’s be clear: This burden would affect every family in America. The creation of a national have to be created
birth registry would be an extraordinarily complicated and costly feat. The nation would
replace a simple system where “birth by its inherent energy and force gives citizenship,” as and maintained
Vermont Sen. Justin Smith Morrill of the Reconstruction Congress described it.
in order to ensure
In its place, policymakers would substitute the straightforward birthright citizenship
with a complex and burdensome process for the more than 4.1 million children born in that citizenship is
the country each year.10 Over 11,300 births per day would encounter vast bureaucratic
red tape. One can imagine the result: an incredibly convoluted procedure that today allocated properly.
only Americans born overseas must follow.11

The costs and consequences: A birth tax and behemoth bureaucracy

The current procedures for proving one’s citizenship—absent birthright citizenship—

are costly and cumbersome. Parents of Americans born abroad are required to undergo
a lengthy and expensive individualized assessment of their child’s citizenship, with
Department of State and Department of Homeland Security charging fees of up to $600
to cover the cost of such assessments. In cases where the parents have clear documenta-
tion proving their citizenship status, these examinations can take weeks or months. If
evidence from multiple documents is required to prove lineage, the waiting period can
stretch into years.12

In the meantime, that child—an American citizen by law—is barred from receiving
the benefits of citizenship, including access to healthcare and education in his or her
own country.

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Imagine, then, what would happen if every new parent in the United States was required
to undergo a similar process—an outcome almost guaranteed by a change in the laws.
Using the costs from the current process for overseas births, we estimate that eliminat-
ing birthright citizenship has the potential to add a birth tax of $600 per child, to say
nothing of the long periods in which children would be stuck in legal limbo, further
increasing the burden on new parents.

In addition to the fees required to submit these new citizenship forms, many families
would need to hire lawyers to help them navigate the complex process, thereby
driving up costs further. This is a burden that will be most severely felt by the
economically disadvantaged.

Changing birthright citizenship would not only affect new parents, but many adults as
well. According to a study by the Brennan Center at New York University, 13 million The elderly, minorities,
Americans cannot prove their citizenship.13 Those earning less than $25,000 a year are
twice as likely to be unable to produce U.S. passports, naturalization papers, or birth and the poor, are less
certificates. Certain groups, including the elderly, minorities, and the poor, are less
likely to have proof of citizenship than the general population, thus making the repeal likely to have proof of
of birthright citizenship especially burdensome for them. Furthermore, for many, proof
of citizenship exists, but not with their current name. This is the case for 34 percent of citizenship than the
voting-age women.14
general population,
The burden of sorting out these complex, high-stakes issues and, where appropriate, cor-
recting mistakes would inevitably fall on the federal government. Thousands of immigra- thus making the
tion litigators, bureaucrats, and skilled immigration examiners would be required to carry
this sort of process out for every child born in the United States. It is truly amazing that repeal of birthright
the same people trying to eliminate funding to provide health care to low- and middle-
income women in the name of “small government” are simultaneously proposing a mas- citizenship especially
sive, deeply intrusive new bureaucracy that will cost taxpayers billions of dollars a year.
burdensome for them.
Think about it. The implications for the Social Security Administration alone are stag-
gering if that agency were to house the new citizenship registry system. Such a system
would render the existing birth certificate moot, no longer sufficient to prove citizenship.
Everyone in America would need new proof about whether they are a citizen or instead
a less-than-citizen.

Less-than-citizens

Many proponents of repealing birthright citizenship argue it would be a method to deter

illegal immigration, but in fact repeal of birthright citizenship would increase the num-
ber of undocumented individuals within the United States. Some experts estimate that
in one year, 2008, 340,000 children were born to at least one undocumented parent.15
The citizenship of each of those children would be called into question. The clear rule of

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citizenship at birth would thereby be transformed into uncertainty for several hundred
thousand children each year.16

In addition to the repeal, Congress would have to address a whole additional set of
thorny questions about the legal status of these children:

• Would they be born “undocumented”?

• Would they come under immediate investigation and be placed in immigration
proceedings?
• Would their parents and families be investigated if these children do not establish
qualifying lineage?
• Would fearful women be less likely to deliver their babies at a hospital,
raising an entirely new set of maternal health issues?
Even Arizona, at the
Even Arizona, at the center of the debate over state-level anti-immigrant legislation,
recently declined to pass a bill aimed at prompting hospitals and emergency rooms to center of the debate
check the immigration status of their patients.17
over state-level anti-
According to a 2010 Migration Policy Institute study, if the 2009 Birthright Citizenship
Act were adopted and the U.S.-born children of two undocumented immigrants were immigrant legislation,
denied citizenship, the size of the U.S. undocumented population would expand signifi-
cantly, even assuming no new undocumented migration. It would rise from 11 million recently declined to
today to 16 million in 2050.18 Of these 16 million, 4.7 million would represent U.S. born
noncitizens, 1 million of whom had been born to parents who had themselves been pass a bill aimed at
born in the United States.19 But the impact of the change would be even larger than
MPI estimated because current proposals would deny citizenship at birth not only to prompting hospitals
the U.S.-born children of undocumented immigrants, but also to U.S.-born children of
many legally present noncitizens. and emergency
rooms to check the
The costs and consequences of a marginalized population
immigration status of
The repeal of birthright citizenship would create a self-perpetuating class of undocu-
mented noncitizens, one, two, three, or more generations going forward. As the MPI their patients.
study authors Jennifer Van Hook and Michael Fix write:

Under a constitutional repeal of the birthright citizenship language of the 14th

Amendment or the proposed Birthright Citizenship Act of 2009, these U.S.-born
descendents of unauthorized immigrants would be denied legal status in the United
States, even though in all likelihood they would be thoroughly American in other
respects. Their descendents, the third generation and higher, might have no claim
to citizenship in the countries of their immigrant ancestors because they and their
parents were not born in those countries. In short, the repeal of the 14th Amendment
or enactment of the Birthright Citizenship Act would lead to the establishment of a
permanent class of unauthorized persons.20

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Do Americans want to set in motion a set of policies guaranteeing that U.S.-born
descendants of undocumented immigrants, for generations ahead, face zero opportuni-
ties in their own country? This self-perpetuating cohort of noncitizens would never be
allowed to apply for citizenship, and therefore would be stuck being strangers in the
land of their birth.

Worse, repealing birthright citizenship would punish children to a potential second-

class existence for the actions of their parents or grandparents. It has the potential to
create a subclass of hereditary stateless individuals, and severely hampers the ability of
immigrants and their children to assimilate or aspire for upward mobility. Such a perma-
nent underclass is inconceivable given our heritage as a nation of immigrants.

The costs of such short-sighted policy are similarly incalculable. Revoking birthright
citizenship to hundreds of thousands of kids would mean denying them the ability to
become prosperous members of society. These children would be barred from access-
ing the social and political institutions that their U.S. counterparts would be guaranteed.
They would be unable to obtain legal employment, a driver’s license, affordable health-
care, or federal financial aid.
These children
Indeed, these children would be denied the American Dream from the get-go.
would be denied
As it stands now, the United States lags far behind the rest of the developed world in
producing scientists and engineers.21 Repealing birthright citizenship would severely the American Dream
reduce the ability of the children of immigrants to thrive educationally, and would make
the idea of college graduation, let alone job retention in critical fields such as science or from the get-go.
engineering, virtually impossible.

An educated population is a productive population. Repealing birthright citizenship

will do no favors to U.S. productivity and economic production. Consider the most
telling foreign experience: Germany, a country that long withheld citizenship from the
children of their guest workers turned residents, has seen the education and attainment
level of second-generation students fall far behind their native peers. One study shows
that second-generation students perform at a score level 93 points below that of their
native counterparts, which equates to one-and-a-half proficiency levels.22

Unique burden for women

The denial of citizenship to babies born in this country to undocumented women, the
majority of whom are women of color, is undeniably an attack on immigrant women’s
fertility.23 Accusations that immigrant women give birth to “anchor babies” in order
to gain the right to citizenship for themselves and their families are based on made-up
anecdotes—myths that depict immigrant women as less than human and that under-
score the racist and sexist tone of anti-immigrant sentiment.

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Proposals to eliminate birthright citizenship would inevitably lead to ethnic profiling
of pregnant women. In fact, without statutory prompting, this has already occurred in
Utah.24 Two state government workers sent the names of 1,300 people to law enforce-
ment and the news media because they suspected them of being undocumented immi-
grants. The list included the due dates of pregnant women, practically an invitation for
harassment, and most likely a violation of federal health privacy laws.

The impact of repealing birthright citizenship would disproportionately impact children

born to families with low incomes. Why? Because a newborn’s ability to access care
through Medicaid or the State Children’s Health Insurance Program may depend on
his or her citizenship status. Bureaucratic hurdles for demonstrating citizenship would
unavoidably result in delayed care for newborns, and delays and/or restrictions on
access to such essential medical services as well-baby visits or vaccinations. As Priscilla Why would our
Huang, associate policy director at the Asian & Pacific Islander American Health Forum,
concludes: “Immigrant women are particularly prone to ideological attacks, as well as nation, the beacon
punitive welfare and immigration policies, because of their capacity for child-bearing.”25
of liberty and
Revoking birthright citizenship would create a context in which such attacks and
policies will only escalate, hurting some of our nation’s most vulnerable women and equality, choose to
children. This is a path that serves neither our values nor our self-interest.
revisit a mistaken
Conclusion: Why retreat to the dark days of Dred Scott? and deplorable
In this, the sesquicentennial of the bloody Civil War, why would our nation, the bea- moment in our
con of liberty and equality, choose to revisit a mistaken and deplorable moment in our
national history? Haven’t those few political leaders who advocate changing or repealing national history?
the 14th Amendment learned the proper lessons from our past?

The debates during the Reconstruction Congress clearly reinforced the need for a
bright-line citizenship rule. Those discussions about the scope and meaning of the
14th Amendment unequivocally set forth the principle that citizenship is conferred at
birth, and that any child born in this country is a U.S. citizen. Supreme Court decisions
have only affirmed this core premise.26 Little can be gained by opening the system up to
competing claims.

Still, some politicians press this lost cause, falsely claiming that the United States is rare
among nations granting jus soli—the right of the soil—meaning citizenship by birth.
There are 28 nations that do so, including Canada and Mexico, our closest neighbors.

More importantly, since when were the values upon which this nation was founded
and built contingent on how other nations treat their citizens? Indeed, the nation’s
commitment to the core values of equality and opportunity upon which the 14th

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Amendment is grounded is the root of America’s exceptionalism. Comparative
arguments thus fail to persuade.

The misguided politicians who pursue this folly must sense short-term potential in
divisive electioneering, but invoking the 14th Amendment serves neither their own
best interests nor the interests of the country they desire to lead. Why? Fundamentally,
their effort to alter the Citizenship Clause offends our deeply felt national values.

America is not a country club. We have always welcomed and accommodated

individuals, especially immigrants from foreign lands, who wish to contribute to our
experiment in self-governing democracy. In their case, citizenship is often a difficult
decision, but a choice nonetheless.

Not so for the children born on our soil. For them, citizenship is neither earned, nor
bartered. Descent does not decide their destiny in America. The appellation “Born in
the U.S.A.” contradicts the idea that they are less than citizens. It declares directly and
forcefully that they are citizens and grants them the full set of rights, which are rooted in
the highest moral and legal traditions of our nation.

Sam Fulwood III is a Senior Fellow at the Center for American Progress. Marshall Fitz
is Director of Immigration Policy at the Center. The authors would like to acknowledge
Ann Garcia, Research Assistant for Immigration Policy; Alex Walden, Reproductive Justice
Law Fellow; and Sam Chatto, former Intern at Center for American Progress, for their
invaluable research assistance.

Endnotes
1 E.g., United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898); Plyer v. Doe, 457 U.S. 202 (1982); and INS V. Rios-Pineda, 471 U.S. 444 (1985).

2 Elizabeth Wydra, “Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded” (Washington:
American Constitution Society, 2011).

3 Amongst the conservatives that have come out against GOP efforts to repeal birthright citizenship are Linda Chavez, Michael
Gerson, Alberto Gonzales, and Ken Starr.

4 Linda Chavez, “The Case for Birthright Citizenship,” The Wall Street Journal, August 11, 2010, available at http://online.wsj.com/
article/SB10001424052748704164904575421222258065684.html.

5 Ibid.

6 Garrett Epps. “Constitutional Citizenship: A Legislative History,” American University Law Review v. 60 (2) (2010): 331-391.

7 James C. Ho, “Defining ‘American’: Birthright Citizenship and the Original Understanding of the 14th Amendment,” 9 Green Bag 2d
367, 374, available at http://www.gibsondunn.com/publications/Documents/Ho-DefiningAmerican.pdf.

8 “Born in the USA?: The Historical and Constitutional Underpinnings of Birthright Citizenship,” Event hosted by the Center for
American Progress and the American Constitution Society, March 31, 2011. Transcript available at http://www.americanprogress.
org/events/2011/03/bornintheusa.pdf.

9 James C. Ho and others, “Made in America: Myths & Facts about Birthright Citizenship” (Washington: Immigration Policy Center: 2009).

10 “Birth Data,” available at http://www.cdc.gov/nchs/births.htm.

11 Ibid.

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 12 Cato Institute, Capitol Hill briefing, Monday, October 25, 2010. http://www.cato.org/event.php?eventid=7534.

13 Brennan Center for Justice, New York School of Law, “Citizens without Proof: A Survey of Americans’ possessions of documentary
proof of citizenship and photo identification” (2006).

14 Ibid.

15 Jeffrey S. Passel and Paul Taylor, “Unauthorized Immigrants and Their U.S.-Born Children” (Washington: Pew Hispanic Center, 2010).

16 Ibid.

17 Andy Barr, “Arizona Rejects More Immigration Crackdowns,” Politico, March 18, 2011, available at http://www.politico.com/news/
stories/0311/51541.html.

18 Jennifer Van Hook and Michael Fix, “The Demographic Impacts of Repealing Birthright Citizenship” (Washington: Migration Policy
Institute, 2010).

19 Ibid.

20 Ibid.

21 Jorge Madrid, “How to Add Hundreds of Thousands of New Scientists, Engineers, and Technicians to Our Workforce,” (Washington:
Center for American Progress, 2010).

22 Organization for Economic Co-operation and Development, “Where Immigrant Students Succeed: A Comparative Review of
Performance and Engagement in PISA 2003” (2006).

23 Gebe Martinez, Ann Garcia, and Jessica Arons, “Birthright Citizenship Debate Is a Thinly Veiled Attack on Immigrant Mothers”
(Washington: Center for American Progress: 2010).

24 “Utah says 2 state workers involved in creating list,” CNN, July 19, 2010, available at http://www.cnn.com/2010/POLITICS/07/16/
utah.immigrant.list/index.html.

25 Priscilla Huang, “Anchor Babies, Over-Breeders, and the Population Bomb: The Reemergence of Nativism and Population Control in
Anti-Immigration Policies.” Harvard Law & Policy Review v.2 (2) (2008): 385-406.

26 Wydra, Born Under the Constitution.

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