Challenges to birthright citizenship are just a distraction.

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Aug. 4 2010 1:08 PM

Babies 'R' Us

Challenges to birthright citizenship are just a distraction.

Republican Sen. Lindsay Graham. Click image to expand.
Sen. Lindsey Graham 

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.

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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.

Given our experience with recent politicized debates over health care and financial reform, as framed, the immigration proposals in the Senate and the House will invite only predictable criticism from the right and the left: Those in the immigrant rights camp will complain about proposals to increase enforcement through biometric cards, stepped-up ICE raids, and enhanced militarization of the border. Anti-immigrant forces will reject anything that suggests an amnesty for "law breakers," including a temporary guest worker program. But if serious consideration were to be given to a long-range economic strategy with Mexico, I believe conservatives and liberals alike would have reason to collaborate. Fewer Mexican workers would want or need to leave their country looking for work—making conservatives happy. And Mexican workers—the vast majority of whom would rather stay home—would have options, making liberals happy.

To truly understand undocumented migration, we have to do what Americans have thus far been unwilling to do: Look beyond the simple explanation that migrants cross the border in search of work. We have to ask why they cannot find what they want in Mexico. In 1994, we were told that NAFTA would solve the undocumented problem because new jobs would be created in Mexico. But NAFTA ultimately contributed to huge job losses in Mexico. Mexican corn farmers could not compete with heavily subsidized U.S. corn farmers, and now Mexico imports most of its corn from the United States. Because of globalization, 100,000 jobs in Mexico's domestic manufacturing sector were lost from 1993 to 2003. Where do those unemployed workers look for work? El Norte.

A comparison with Europe is instructive here. When the European Union experienced pressure to expand its ranks to include poorer nations, the wealthier members worried. EU membership includes the right to open labor migration, and wealthy countries fretted that membership would bring a flood of poor workers across their borders. So beginning with the 1973 EU enlargement to include Denmark, Ireland, and the United Kingdom, the British insisted on an approach to aid poorer regions. When Greece (1981), then Portugal and Spain (1986), were added, all three nations as well as Ireland received infusions of capital and assistance with institutional planning. This approach worked. Their economies transformed, Ireland, Portugal, and Spain—all of which were emigrant-sending nations prior to EU membership—are now net immigrant-receiving nations. Today, only 2 percent of EU citizens look for work in other EU countries. One other useful lesson? The EU strategy of providing "adhesion" funds was forged by conservatives and liberals working together, rather than at cross purposes.

The anti-immigrant lobby has used the politics of fear to generate much of the hysteria over immigration today. They advance the specter of hordes of immigrants coming to take our jobs and commit crimes, while refusing to speak English. Of course the empirical data undercut those myths. Yet through fear and intimidation, comprehensive immigration reform has been stalled for years.

An economic turnaround in Mexico is central to solving the undocumented migration challenge in the United States. Conservatives should understand that. And liberals should recognize that reducing undocumented migration is in Mexico's interest as well; the persistent loss of able-bodied workers needed to build its infrastructure and economy only hurts Mexico. To be sure, investment in Mexico will not and, probably, should not be done without close monitoring. The EU enlargement policy sets standards for candidate countries. These criteria require a country that wishes to join the EU to meet certain political, social, and economic standards. We need a similar strategy in our own hemisphere. The longer we put this off, the worse the immigration crisis becomes.

Raising the issue of birthright citizenship—indeed the prospect of years of congressional hearings followed by years wasted attempting to amend the Constitution—doesn't do much beyond stirring up more hostility toward undocumented immigrants. Worse yet, it distracts us yet again from the meaningful discourse that might truly solve the problem. If key Republicans really want to launch a discussion about the U.S.-born children of illegal immigrants, then fine. What they will find is a group of young adults who are English speakers, good neighbors, and hard workers and who contribute importantly to the economy and to our society. In short, they will find Americans, who should be protected by the Constitution, not persecuted by it.

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Bill Ong Hing is a professor of law at the University of San Francisco and author of Ethical Borders: NAFTA, Globalization and Mexican Migration.

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