February 2012 Public Forum Topic
Resolved: Birthright citizenship should be abolished in the United States.
The February topic will crash into the controversial topic of illegal immigration. I think, unless one lives in a border state, it is not one of the leading issues on Americans' minds considering the state of the economy, the jobs situation, the national debt, Congressional grid-lock, etc. But only a few years ago, prior to the economic collapse, immigration, particularly, illegal immigration, was a hot-button topic all across the nation. This resolution deals with the provisions in U.S. constitutional law which grants citizenship to any person born on U.S. soil, including the U.S. proper, territories and embassy grounds. Of course, the controversy arises when children are born of individuals whom themselves are not citizens. So get ready to take the 14th Amendment to task.
Birthright citizenship is granted under the provisions of the 14th amendment of the Constitution which provides the protections for all things "citizen" in the United States. Among other things, it provides the basis under which citizenship is granted or taken away. It was adopted in 1868 and the historical context is significant. This was the Reconstruction period when the country was recovering from civil war and freed slaves, previously denied citizenship status were being integrated under the provisions of the amendment. In particular, the "birthright" clause basically established the right of citizenship to all former slaves born in the United States. In addition, Native Americans in the west were being rounded up and forced to live on reservations, also denied important protections of due process afforded citizens. At the time this amendment was ratified, Oklahoma was not a state, rather known as the Oklahoma Territories and the home of many Native American groups. Under this backdrop, legislators needed to legitimize the citizenship of former slaves denied under the rulings of the Dred Scott case in 1857. The clause which establishes the debate for the February PF resolution states:
Section 1 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Like so many things that were well intended, many now believe birthright citizenship is harming the United States in several key areas. Basically the argument claims that illegal immigrants are coming to the United States, giving birth to children who subsequently are deemed citizens under Section 1 of the 14th Amendment and as such are entitled to all rights and protections afforded any U.S. citizen. I think it is important for the debater to put aside any undue biases about the illegal immigrant and dispel the notion these individuals are exclusively, Mexican or Central American people who sneak across the southern border under cover of darkness or in the back of covered trucks. In fact, this provision very often applies to foreign nationals who are in the United States legally under tourist or work Visas. For example, a German engineer working in the U.S. for an extended period of time with his wife. Neither individual is a U.S. citizen, but if they should have a child born here while they are in residence, that child would be considered a U.S. citizen and more than likely would enjoy the benefits of dual-citizenship, of both Germany and the United States. Now, this scenario may not rouse the attention or ire of many people even though it happens often. The reason for the lack of concern is likely because these people are in the country legally having passed through the border under passport and Immigration Dept. control. So what about those who do enter the country outside of the control of the U.S. Immigration Dept and who may be living and working here without approval of the U.S. government? Under the provisions of Section 1 of the 14th Amendment, if their child is born here, the child is granted citizenship. And so it is, this debate resolution provides clash. Many see the issues revolving around the wording of the Amendment, in particular the phrase "subject to the jurisdiction". The claim will be made by those in favor of repeal these children are being given, health-care, education and other benefits of citizens and they are dubbed "anchor children" because their status often makes it much more difficult to deport their illegal parents and perhaps some will claim, these children and their parents are not under the jurisdiction of any state.
The Sweeping Resolution and Pro's Burden
Resolved: Birthright citizenship should be abolished; not amended, revised, limited nor reviewed. This seems to be Pro burden and one I hope can be defended. Certainly the wording of the resolution leaves little wiggle-room for a moderated or provisional point of view. Either we allow birthright citizenship or we do not. It's all or nothing. So it would seem one clear tactic for Pro will be a comparative advantage approach to the case. There are advantages to birthright citizenship and there are harms. If the harms outweigh the advantages then the case for abolishing is upheld, assuming the judge is convinced. If this is indeed the Pro burden, it is pointless for Pro to build any case around the "subject to jurisdiction" provision. More on this later.
Over the next few weeks, I will examine this topic in much more detail with a series of postings. For now, I would suggest a look at the following:
Supreme Court Cases:
1898 United States v. Wong Kim Ark
1884 Elk v. Wilkins
Second Class Delivery: The Elimination of Birthright Citizenship As a Repeal of "the pursuit of Happiness", S.C. Barnhart, GEORGIA LAW REVIEW, 42, no. 2, (2008): 525-568
Addressing the call for the elimination of birthright citizenship in the United States: constitutional and pragmatic reasons to keep birthright citizenship intact, Katherine Pettit, Tulane Journal of International and Comparative Law, v15 (n1) (Winter 2006): 265-289
Birthright citizenship and the Fourteenth Amendment in 1868 and 2008.(Symposium: The Second Founding), Rogers M Smith, University of Pennsylvania Journal of Constitutional Law, v11 (n5) (July 2009): 1329-1335
Birthright Citizenship and the Civic Minimum, W T Mayton, Georgetown immigration law journal. 22, no. 2, (2008): 221-258
"End Birthright Citizenship", Virgil Goode, Human Events, 7/19/2010, Vol. 66 Issue 25, p18
"Sen. Mitch McConnell defends hearings on birthright citizenship", Dave Cook, August 5, 2010, The Christian Science Monitor
"14th Amendment: why birthright citizenship change 'can't be done';
A new amendment to address citizenship issues would be tough in today's polarized environment. Some say that legislation related to the 14th Amendment is the answer, but that would be hard, too.", Peter Grier, August 10, 2010, The Christian Science Monitor
"Baby Baiting The war against birthright citizenship.", Robin Templeton, The nation. 291, no. 7, (2010): 20