Babies 'R' Us
Challenges to birthright citizenship are just a distraction.
Republican Sen. Lindsey Graham last week proposed amending the Constitution to change the law that grants citizenship to the children of immigrants born in the United States. More specifically, he would change the language of the 14th Amendment to bar birthright citizenship for the children of undocumented parents. Graham's Senate Republican colleagues John McCain, Jon Kyl, and Minority Leader Mitch McConnell all agree that hearings should be held on the proposal. This effort is just the latest evidence of how insincere they are about supporting a meaningful attempt at immigration reform, opting instead for pointless political chest-thumping.
They cannot be serious about amending the 14th Amendment (which may explain why key Republicans are already backing away from the proposal). The Constitution can only be amended in two ways: The first is for a bill to pass both houses of Congress, by a two-thirds majority. Good luck with that, especially in this age of partisan politics. Once the bill has passed both houses, then it's on to the states for approval. Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment that must be ratified by three-fourths of states. Again, good luck.
The second method requires that a constitutional convention be called by two-thirds of the legislatures of the states. Any amendments adopted would then be sent to the states to be approved by three-fourths of the legislatures. This route has never been taken, and there is concern in political science circles about just how such a convention would even be convened and the can of political worms it could open.
The last serious effort at a constitutional amendment was the Equal Rights Amendment. The proposal, intended to guarantee that equal rights under any federal, state, or local law could not be denied on account of gender, was passed by both houses of Congress in 1972. But only 35 of the required 38 states ratified the change. Thus, the amendment failed even after a controversial extension of the ratification period.
I seriously doubt that the American public has either the interest in, or the stomach for, a long, drawn-out constitutional debate about birthright citizenship. Polls show the public favors the anti-immigrant Arizona SB1070 but overwhelmingly supports legalization for undocumented immigrants as well. Apparently, the majority of the public is open to having a real conversation about immigration policy and solving the undocumented immigration challenge. This attack on U.S. born children—or, per the ugly moniker, "anchor babies"? That's just a distraction.
Challenges to birthright citizenship are not new. They emerge in predictable historical cycles. Like other attention-grabbing anti-immigrant initiatives, they may even spark debate, but not the kind of honest discussion necessary for immigration reform. Proposals couched in enforcement-only, anti-immigrant sentiment naturally encounter reflexive push-back from immigrant rights supporters advocating legalization. That's why the polarized battle over closing the border and increasing enforcement, versus enacting a legalization program, leaves little room for meaningful conversation. For any real change to come about, we must talk about the needs of employers and the contributions of immigrants. The vitriol about pregnant foreigners who sneak across our borders prevents us from getting an accurate picture of who most immigrants are—both documented and undocumented—and why they continue to arrive instead of trying to achieve their dreams at home. For example, our instincts tell us that reducing the flow across the southern border will require the expansion of the economy and job growth in Mexico. Yet formulating a plan to work with Mexico on its economy has never been part of the discussion.
The real problem with the enforcement-only approach to the undocumented immigration challenge is obvious: It's pretty much all we've been doing for the past decade, and what's the result been? Billions of dollars later, we are left with daily deaths at the border, as an enforcement regime funnels the continuous flow of migrants through the most treacherous terrain and ICE raids. Our borders separate loved ones as detention facilities bulge to the breaking point.
Congress is currently sitting on Senate and House proposals for reform that attempt to strike a principled balance between greater enforcement and a fair way to adjust the status for the 10 million to 12 million undocumented immigrants in the country. However, even immigrant rights advocates must acknowledge that legalization will not solve undocumented migration permanently. An expansion of visas will certainly help, but if the package does not include at least the first steps toward helping Mexico improve its economy and infrastructure, undocumented Mexican migration will continue, and the tension over undocumented migration will resurface down the road.
Bill Ong Hing is a professor of law at the University of San Francisco and author of Ethical Borders: NAFTA, Globalization and Mexican Migration.
Photograph of Sen. Lindsey Graham by Alex Wong/Getty Images.