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Arizona’s Next Target: Children of Immigrants

Posted February 3, 2011 by Patrick Young, Esq.

Last week, fifteen members of the Arizona House of Representatives and eight state senators, including Senate President Russell Pearce, introduced bills in both chambers of the Arizona legislature to take birthright citizenship away from children whom the sponsors of the bills repeatedly called “anchor babies.” In other words, the targets were the children of the undocumented.

It is important to take a detailed look at the bill to understand why the bill is a mess of prejudice that undermines both the spirit and the letter of the 14th Amendment.

Click here for the full text of the House version.

The bill attempts to establish a definition of who is a citizen of the state of Arizona. As I will explain in a post next week, this is an important first step in denying citizenship rights to millions of US-born children of immigrants.

Here is what the bill says:

A. A person is a citizen of the state of Arizona if:

1. The person is born in the United States and subject to the jurisdiction thereof, and
2. The person is lawfully domiciled in the state of Arizona.

B. For the purposes of this section, subject to the jurisdiction of the United States has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this section, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.

C. In addition to the criteria of citizenship described in subsections A and B, a person is a citizen of the state of Arizona if:

1. The person is naturalized in the United States.
2. The person is lawfully domiciled in the state of Arizona.

The first problem with Arizona defining who is and who is not a citizen of the state is that the Constitution already does that. Here is what the 14th Amendment has to say on the subject:

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.

This means what it says it means: If you are a United States citizen, then you are a citizen of the state in which you reside. The next line of the 14th Amendment emphasizes the point that the states are not to determine citizenship:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The framers of the 14th Amendment were emphatic that states make no law affecting the citizenship status of persons born within the territory of the United States because at the time, back in the 1860s, states that had been members of the Confederacy were trying to do just that. They were passing state laws that deprived non-whites of citizenship in order to keep freed slaves and their children in a new form of civil bondage.

In other words, the 14th Amendment says that we cannot trust the states to determine who is a citizen of the United States, or even of its own state, because such determinations might be tinged with racial prejudice.

Those Radical Republicans were quite prescient, now that I think of it.

Apart from contravening the 14th amendment’s outright ban on states determining who is a citizen, the Arizona bill also contains the ridiculous notion that a state legislature can create a binding interpretation of the federal Constitution. The bill, as does the 14th amendment, limits birthright citizenship only to children born in the U.S. who are “subject to the jurisdiction of the United States.”

In Section B, the bill then interprets what the 14th Amendment in that respect:

Subject to the jurisdiction of the United States has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this section, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.

One could imagine South Carolina passing a law in 1869 saying that “subject to the jurisdiction of the United States” means that a person was not born into slavery and therefore that former slave could not be citizens! We don’t allow states to make binding interpretations of the 14th Amendment because they would be quite likely to impose racist definitions on clauses designed to bring all people born here civil equality before the law.

We do allow the Supreme Court to interpret the Constitution, and that body has already ruled that persons who are excluded from citizenship because they are not “subject to the jurisdiction” of the United States are people like the children of diplomats, whom the United States could not bring into court and who are therefore not “subject to the jurisdiction of the United States.”
The next clause of the bill evinces a horrible ignorance of both the Constitution and basic immigration law. The bill is touted as a way to deprive the children of undocumented immigrants of citizenship, but anyone reading it realizes that it goes considerably further.

The bill says that a child born in the US must be the child of “at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this section, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.”

First of all, the law defines “an immigrant” as a person having “no allegiance to any foreign sovereignty.” Unfortunately for the drafters of the Arizona bill, this is nonsense. “Immigrants,” more popularly called “permanent residents” or “green card holders,” do not give up their allegiance to their home country when they immigrate to the United States. They only do so when they become US citizens. So it is nonsense to refer to “immigrants” as persons owing no allegiance to a foreign government.

A second problem arises from the bill’s apparent ignorance of a large class of people known as “non-immigrants.” These are people here on student visas, high tech work visas, etc. If a non-immigrant couple gives birth to a child while attending graduate school at the University of Arizona, that child will not be a citizen of Arizona, even though his parents were both legally residing in the state. Presumably, it will be considered some sort of “illegal alien” under Arizona law, even though the child is a US citizen under our Constitution.

The third problem is the bill only accords Arizona citizenship to persons born in the US and naturalized citizens, that is immigrants who become citizens.

There is a whole other class of people who are US citizens: i.e. persons born abroad to US citizen parents. Under the bill, the children of American soldiers born in Germany and of American students born in England would not be Arizona citizens when they are brought to Phoenix by their parents, even though they are indisputably American citizens.

One would think that Arizona, of all states, would be sensitive to this issue. One of the senators representing Arizona, John McCain, was, after all, born outside of the United States to a Navy family. If the bill passes, he would be a citizen of the US, but not of Arizona.

Last year, it was common for supporters of Arizona’s SB 1070 to demand of critics that they “read the bill” before they spoke about it. Of course, when a judge read SB 1070, she put a stop to its implementation immediately as unconstitutional. It seems quite clear that none of the 23 sponsors of the “Anchor Baby” bill bothered to read it (or the Constitution) before it was introduced.

Feature image courtesy of Axel Bührmann via Flickr and salimfadhly via Flickr.

Tags : 14th amendment, arizona, arizona birthright series, birthright citizenship, constitution, john mccain, sb 1070