Monday, January 2, 2012

PF 2012 February Topic Analysis

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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 Provision
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.

The Issues
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

"Happy New Year"!


  1. Im wokring on my pro case to the topic and i was wondering if it is effective to have my first contention being the 14th amendment was misinterpreted meaning that it never was meant that every baby born of illegal immigrants get citizenship it was meant to stop the governments from denying rights to African Americans , and for my second to contention to be since the African Americans rights are no longer at jeopardy in the US anymore, then the 14th amendment is not needed. This make any sense?

    1. Hello. I think you will need some very strong warrants to support the idea the 14th amendment was aimed specifically to freed slaves. If you look at my followup post here: I discuss the Supreme Court case of US v. Ark (also referenced in this post). In the Court's ruling it is stated the principle of birthright citizenship predates the 14th Amendment when it is noted birthright citizenship was common law in England and so a precedent for the U.S. law. This ruling will make your case more difficult to prove, in my opinion since the idea is based on earlier practice and not necessarily any specific issues related to African Americans. If you cite specific challenges to the rights of African Americans during the years between 1865 and 1868, it will go a long way toward helping your case.

  2. i guess that makes sense, i just dont want the pro case to make me sound like a bigot i like immigration but not when illigal aliens can come over here and have a baby and get to be a citizen so easily, i dont really know how to approach this in a nice way =[

    1. Maybe it would help to write the Con side first. Good luck!

  3. I just wanted to say your analysis is spot on, and I greatly appreciate what you're doing (from one coach to another!)

    1. Thank-you. I appreciate your encouraging comment very much.

  4. How exactly would you recommend that we write a pro case for this? The evidence is very heavily weighted toward the con, from what I can see. But more importantly, I feel as though a lot of the things are very weak. For example, a large contention is that the 14th amendment is misinterpreted. But wong kim ark, plyler v doe, and ins v. rios pineda negate that incredibly easily. Furthermore, the contention regarding birthright citizenship being a magnet has far more things against it than for it. And the main people who propogate it to be a magnet are not considered credible sources (such as lindsey graham or as compared to the contrary evidence (pew research studies, Migration policy institute, etc.)Heck, even, I believe it was Jon feere, of the CIS, a rather conservative source, said there is disagreement in the organization as to whether or not birthright citizenship is a magnet for illegal immigration. The evidence regarding the economic benefits is also very easily outweighed by the con side. So how would you recommend writing a pro case?

    1. I think I have already gone some distance to answering your question here:

      Your question deserves more than a simple reply but I will say, I believe PRO can win debates. One of the most important aspects is the ethos the pro debater maintains. Remember, persuasive speech is more than facts and logic. Review the modes of rhetorical speech and persuasion. It is VERY IMPORTANT for the Pro debater to guard case language very carefully. Avoid terminology which is perjorative. Even referring to illegal immigrants as "aliens" or the children as "anchor babies" can damage a team's ethos depending on the judge's world-view. Additionally, great care must be taken to assure the Pro case does not seek to reduce or eliminate immigration, and does not advocate any particular view with respect to how illegal immigrants should be managed. The debate is not about that.

      Instead, several lines of offense can be recommended. First, examine the scope of the problem. How big is it and how many children are affected? Second, look to what happens to these children and their parents. Research a topic called "constructive deportation" and find out how many parents of these children in question are deported and if the children are deported with them are their rights infringed? Regarding the right to attend schools or receive medical benefits you should understand that even immigrants who are here illegally are also entitled to these rights so therefore restricting birthright citizenship does not deprive children of their rights. Consider how these facts may be applied to answer the charge Pro is making "children suffer for the decisions of their parents". Despite the "equal protection" provisions of U.S. jurisprudence, the courts have consistantly ruled that parents of birthright children should not be given any special consideration in favor of those legally applying for citizenship.

      It is worth investigating, the fundamental basis of the Supreme Court's decision in US v. Ark, namely the common law precedence of birthright. Find out, why England repealed jus soli citizenship in 1981. Afterall, the English commonwealth law was specifically cited by the court. In light of the foregoing, one must look to the wisdom of granting birthright citizenship in the post 9-11 age of terrorism (again be careful of perjorative terminology).

      A very compelling case can be made relative to "SHOULD" birthright citizenship be abolished based an examination of what "citizenship" means and its value. Examine how citizenship is a state of mind and heart which outweighs the legal consideration.

      In Summary, there is a wealth of information to be found in academia in support of the Pro position but it will require more than a casual google search to discover.

      I leave you with this quote from James Madison:
      "When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir; it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of."


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