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SUMMARY OF TESTIMONY
I.WHY CONGRESS HAS NO POWER TO DENY U.S. CITIZENSHIP TO THE NATIVEBORN CHILDREN OF NONIMMIGRANTS AND ILLEGAL ALIEN PARENTS
The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to "All persons born... in the United States, and subject to the jurisdiction thereof. "
The meaning of the phrase "subject to the jurisdiction" has been well established for a century. It means actual subjection to the lawmaking power of the United States. Nothing in the Citizenship Clause requires that the parents of a child born in the United States must be permanent residents, rather than temporary visitors or illegal aliens, for the child to be "subject to the jurisdiction" of the United States.
This well-established understanding has been questioned today solely because of a contrary theory invented in a book published in 1985. That book's argument is poorly reasoned and historically inaccurate.
Among other flaws, there is no reasonable interpretation of the constitutional language that will fit the revisionist theory.
Nor can the argument be reconciled with the legislative history of the Fourteenth Amendment, or the Supreme Court's explanation of the Citizenship Clause.
II. PROBLEMS RAISED BY PROPOSED CONSTITUTIONAL AMENDMENTS
1 . The proposed amendments would harm U.S. society, by creating a hereditary caste of illegal alien inhabitants.
2. Some of the proposed amendments would deny citizenship to children born to lawfully admitted aliens who were not considered residents. There is no social problem justifying this change, and it could harm U. S. society by creating hereditary categories of legal alien inhabitants.
3. The current rule is a bright line rule that protects all native-born citizens. The proposed amendments would make the citizenship of native-born citizens less secure.
4. The proposed changes are incomplete, because they withdraw citizenship from certain children without specifying what the status of those children will be, and without providing those children any substitute protections for their rights.
5. The proposed changes would inflict great harm on innocent children who are obviously not responsible for their parents' conduct. Immigration control efforts are better targeted at the parents, not at their U.S.- born children.
6. Some of the proposed amendments discriminate on grounds of sex.
7. Some of the proposals would repeal the Citizenship Clause or remove it from the Fourteenth Amendment.
These proposals may have unintended consequences for the rights of U.S. citizens generally.
8. Amending Section One of the Fourteenth Amendment would be an act of great symbolic importance for the United States. The Fourteenth Amendment redefined the United States as a nation committed to equality. The Citizenship Clause is an integral part of that commitment. It repudiates the Dred Scott decision and guarantees the United States a nonethnic national identity. This guarantee should not be discarded lightly.
ORAL TESTIMONY
I.INTRODUCTION AND SUMMARY
Mr.Chairman and members of the Subcommittee, I am honored to have been invited to testify with regard to proposals to amend the citizenship laws. I have given a fuller discussion, with documentation, in the written supplement to my testimony. To state my conclusions briefly: First, the constitutional law is clear -- Congress has no power whatsoever to deny U.S. citizenship to children born in the United States to nonimmigrant or illegal alien parents. Second, as a matter of policy: there are strong reasons that favor preservation of the current rule.
II.WHY CONGRESS HAS NO POWER TO DENY U.S. CITIZENSHIP TO THE NATIVE-BORN CHILDREN OF NONIMMIGRANTS AND ILLEGAL ALIEN PARENTS
The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to "All persons born ... in the United States, and subject to the jurisdiction thereof. " T h e
1 Professor of Law, Columbia University School of Law, New York, NY.
purpose of the Clause was to overturn the Dred Scott decision, which had excluded AfricanAmericans from citizenship, and more broadly to guarantee that the United States population would not contain a hereditary caste of noncitizens, vulnerable to exploitation.
The meaning of the phrase "subject to the jurisdiction" has been well established for a century. It means actual subjection to the lawmaking power of the United States. It echoes the English common law notion of the King's "protection." United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898). The common law exceptions included children of foreign diplomats, who were legally immune from domestic law, and children born to women accompanying invading armies, who were practically immune from domestic law. The original United States interpretation also included children bom as members of Indian tribes, which were separate self- governing societies over which Congress did not exercise direct lawmaking authority.
Nothing in the Citizenship Clause requires that the parents of a child born in the United States must be pennanent residents, rather than temporary visitors or illegal aliens, for the child to be "subject to the jurisdiction" of the United States.
This well-established understanding has been questioned today solely because of a contrary theory invented in a book published in 1985 by Professors Peter Schuck and Rogers Smith. I am sorry to be so critical of my friend Peter Schuck, but even Homer can nod, and that book's argument is poorly reasoned and historically inaccurate.
In the limited time available, I can emphasize only one of the flaws in the revisionist argument. To reconcile their theory with the Citizenship Clause, Professors Schuck and Smith offer an unprecedented explanation of "jurisdiction." They say it means "a more or less complete, direct power by government over the individual, and a reciprocal relationship between them at the time of birth, in which the government consented to the individual's presence and status and offered him complete protection. " In plain English, a child would not be "subject to the jurisdiction" of the United States unless the United States consented to the child's status as a citizen. First, this is completely circular, like other parts of the revisionist argument. It would really guarantee no one citizenship at birth. Second, no one else has ever used the term "jurisdiction" this way. This peculiar definition illustrates the impossibility of the revisionist project: there is no reasonable interpretation of the constitutional language that will accomplish the revisionists' goals. Nor can the argument be reconciled with the legislative history of the Fourteenth Amendment, or the Supreme Court's explanation of the Citizenship Clause in Wong Kim Ark. Congress has no tenable basis for attempting to amend the citizenship statutes without a constitutional amendment.
III. PROBLEMS RAISED BY PROPOSED AMENDMENTS
I only have time to list briefly some of the serious problems raised by the proposed amendments to the Citizenship Clause. At the outset, it must be recognized that changing the citizenship rule would not remove the children of illegal alien parents from the United States. In fact, it would not even make a substantial contribution to the enforcement of the immigration laws. Whatever the citizenship rule may be, many thousands of these children will remain in the United States. Given that fact, the United States benefits greatly by recognizing them as citizens.
1. The proposed amendments would harm U.S. society, by creating a hereditary caste of illegal alien inhabitants.
2. Some of the proposed amendments would deny citizenship to children born to lawfully admitted aliens who were not considered residents. There is no social problem justifying this change, and it could harm U.S. society by creating hereditary categories of legal alien inhabitants.
3. The current rule is a bright line rule that protects all native-born citizens. The proposed amendments would make the citizenship of native-born citizens less secure, because citizenship would be more difficult to prove once it depended on the status of one's parents and grandparents rather than on one's place of birth.
4. The proposed changes are incomplete, because they withdraw citizenship from certain children without specifying what the status of those children will be, and without providing those children any substitute protections for their rights.
5. The proposed changes would inflict great harm on innocent children who are obviously not responsible for their parents' conduct. Immigration control efforts are better targeted at the parents, not at their U.S.- born children.
6. Some of the proposed amendments discriminate on grounds of sex. This would be objectionable in itself, and could have unforeseen consequences for constitutional interpretation generally.
7. Some of the proposals would repeal the Citizenship Clause or remove it from the Fourteenth Amendment. These proposals may have unintended consequences for the rights of U.S. citizens generally, and may increase their vulnerability to involuntary expatriation.
8. Amending Section One of the Fourteenth Amendment would be an act of great symbolic importance for the United States. The Fourteenth Amendment redefined the United States as a nation committed to equality. The Citizenship Clause is an integral part of that commitment. It repudiates the Dred Scott decision and guarantees the United States a nonethnic national identity. This guarantee should not be discarded lightly.
Thank you for the opportunity to address these problems, and I look forward to your questions.
WRITTEN TESTIMONY
I. INTRODUCTION AND SUMMARY
Mr. Chairman and members of the Subcommittee, I am honored to have been invited to testify with regard to H.R. 705, H.R. 1363, and other proposals to amend the citizenship laws of the United States to deny U.S. citizenship at birth to certain categories of children born in the United States. These various proposals raise a lengthy series of questions, because they address different categories of alien parents, and because some of them attempt to accomplish their goals by ordinary legislation, while others contemplate amendments to the Constitution.
Nonetheless, a brief summary of my testimony is possible: first, a clear statement of law: unless the Constitution is amended, Congress has no power whatsoever to deny U.S. citizenship to children born in the United States to nonimmigrant or illegal alien parents. Second, as a matter of policy: there are strong reasons why the birthright citizenship for the children of nonimmigrants and illegal aliens should be preserved. Third, the proposals to amend the Citizenship Clause of the Fourteenth Amendment raise further problems of constitutional policy.
II. WHY CONGRESS HAS NO POWER TO DENY U.S. CITIZENSHIP TO THE NATIVE-BORN CHILDREN OF NONMIMIGRANTS AND ILLEGAL ALIEN PARENTS
A. The Meaning of the Citizenship Clause of the Fourteenth Amendment
The Citizenship Clause of the Fourteenth Amendment reads: "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." The longstanding interpretation of this Citizenship Clause guarantees American citizenship to all children born to aliens within U.S. territory, with a few minor exceptions I will mention later. The status of the alien parents is irrelevant; they may be permanent residents, lawful nonimmigrants, or unlawfully present. The United States thus follows a version of the jus soli rule of citizenship, citizenship by right of the soil, which it inherited from the common law of England. The historical purpose of this clause is well known: it was intended to overrule the most infamous decision in U.S. constitutional history, the Dred Scott decision. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). One of the holdings of that case was that the jus soli rule of citizenship applied only to whites: free persons of African descent could not be citizens of the United States, even if they were born in the United States.
The original text of the Constitution had failed to specify any criteria for citizenship in the United States, and the jus soli rule had been followed as part of our common law heritage. That omission had made the Dred Scott decision possible. After the Civil War, Congress sought to remedy that tragic error. Senator Howard, the author of the Citizenship Clause, introduced it with the following explanation: "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideraturn in the jurisprudence and legislation of this country. " Cong. Globe, 39th Cong., 1st Sess. 2890 (1866) (remarks of Sen. Howard).
The framers of the Fourteenth Amendment had strong reason for desiring a constitutional settlement of the issue of birthright citizenship. They had just overthrown a system founded on denial of political membership in the country to a hereditary category of inhabitants. The Citizenship Clause was designed to prevent that situation from ever happening again. Both the proponents and the opponents of the Citizenship Clause understood this. For example, Senator Cowan, a vehement opponent of the Fourteenth Amendment, complained that granting citizenship to the children of Chinese alien parents on the Pacific Coast would prevent the states from "dealing with [the Chinese] as in their wisdom they see fit." In response, the supporters of the Citizenship Clause expressly confirmed their intent to protect the children of Chinese parents by recognizing them as citizens. See Cong. Globe, 39th Cong., 1st Sess. 2890-92 (colloquy of Sens. Cowan and Conness) (1866); see also id. at 498 (colloquy of Sens. Trumbull and Cowan regarding the 1866 Civil Rights Bill). The legislative history of the Fourteenth Amendment provides strong confirmation that birth in the United States would suffice to confer citizenship on children of aliens of any race, as it had earlier done for children of unnaturalized European immigrants.
The legislative history also confirms that the framers of the Fourteenth Amendment intended to deny constitutionally mandated citizenship to a few categories of children, whom they regarded as not "subject to the jurisdiction" of the United States, and therefore not within the protection of the common law jus soli rule. As the Supreme Court explained in the leading case of United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898):
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States," by the addition, "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases -children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
The common law did not consider as subjects or citizens children born to aliens who did not enter the country as individuals, but rather entered under the auspices of their governments with legal or factual immunity from local law. Children born to ambassadors of foreign nations were covered by comity principles of international law that restrain the state's exercise of lawmaking power. Children born to parents accompanying an invading army, enter under extraordinary circumstances that temporarily oust the operation of local law. The example repeatedly used in the congressional debates was the children of ambassadors. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2897 (1866) (remarks of Sen. Williams).
The framers of the Fourteenth Amendment also intended to deny constitutionally mandated citizenship to a category of children whose parents were neither citizens nor aliens: American Indians born within their own organized political communities. The tribes were separate, self-governing political communities whose sovereignty predated the Constitution. At the time of the adoption of the Fourteenth Amendment the federal government did not exercise legislative power directly over their members, but negotiated treaties with the tribes as sovereign powers. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2895 (1866) (remarks of Sen. Howard); see also Elk v. Wilkins, 112 U.S. 94 (1884). That is why both the original Constitution and the Fourteenth Amendment excluded "Indians not taxed" -- i.e., those living under tribal governance, over whom Congress did not exercise the taxing power -- from the basis of apportionment. Indians living in their tribal societies were governed by their own legal systems, like aliens who had remained at home under their own governments and diplomats, and unlike alien immigrants and visitors, who became subject to the laws of the state and federal governments upon entry. The effective legal and military independence of many tribes from state or federal governance made this notion of "domestic dependent nations" more realistic in 1866 than it subsequently became.
This history is consistent with giving the phrase "subject to the jurisdiction [of the United States]" its natural reading as actual subjection to the lawmaking power of the United States; this interpretation fulfills the framers' intentions and echoes the common law notion that children become subjects of the King by being born within his "protection." This is exactly how the Supreme Court explained the meaning of the Citizenship Clause in United States v. Wong Kim Ark.
Nothing in the language of the Citizenship Clause, its legislative history, or its traditional interpretation, requires that the parents of a child born in the United States must be permanent residents, rather than temporary visitors, for the child to be "subject to the jurisdiction" of the United States. Both the English tradition and the Supreme Court's language in Wong Kim Ark treat temporarily present aliens as equivalent to resident aliens for this purpose, because both are subject to the authority of the government. See Wong Kim Ark, 169 U.S. at 655, 658, 674, 687, 688, 693; Calvin's Case, 7 Co. Rep. lb, 6a ("[f]or [the alien] owed to the King local obedience, that is, so long as he was within the King's protection; which local obedience being but momentary and uncertain is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject.").
Nor is there anything in the language, legislative history, or traditional interpretation of the Citizenship Clause that would exclude children born in the United States to aliens who are not lawfully present here. Clearly, deportable aliens are subject to the jurisdiction of the United States -- that is what makes them deportable, and often subject to criminal punishment as well. Their children born in the United States, though not themselves guilty of violating any law, have no immunity from the lawmaking power of the United States, and are fully subject to its jurisdiction.
The applicability of the constitutional jus soli rule to children of nonimmigrant aliens and illegal aliens finds confirmation in the similar interpretation of the rule by the United Kingdom and Canada. The United Kingdom followed this interpretation until 1981, when a different rule was adopted by statute,' and Canada still extends citizenship to all children born in the territory except the children of foreign diplomats.'
B. The Revisionist Interpretation
Everything that I have said so far has been well- established for many years. This traditional understanding has been questioned today solely because of a contrary thesis argued in a book published in 1985 by two professors at Yale University, Peter H. Schuck and Rogers M. Smith. I am sorry to be so critical of my friend Peter Schuck, but even Homer can nod, and
2 See J.M. Evans, Immigration Law 77-80 (2d ed. 1983); British Nationality Act 1981, ch. 61, 1 (1) (Eng.) (limiting citizenship to children of citizens and of aliens who are legally settled in the United Kingdom). Children of non-settled or illegal aliens, however, become entitled to citizenship if they remain the first ten years of their life in the United Kingdom (allowing annual absences up to 90 days). Id. 1(4).
The change in British nationality law was part of the process of the United Kingdom's disengagement from its former overseas empire and restriction of nonwhite immigration from former colonies. See Evans, supra. 3 Citizenship Act, R.S.C., ch. C-29, 3(l)(a), 3(2) (1991) (Can.).
that book's argument for a revisionist interpretation of the Fourteenth Amendment is poorly reasoned and historically inaccurate.
The book, entitled Citizenship without Consent: Illegal Aliens in the American Polity, sets forth a theory of what it calls citizenship by mutual consent. Under this theory, citizenship in a community should depend on the consent of both the individual and the community. The book's analysis of the political philosophy of citizenship has been criticized,4 but more important for present purposes are the fallacies in its effort to impose this philosophy on the Citizenship Clause of the Fourteenth Amendment. I pointed out these problems in a review of the book in 1987, 5 and most of these errors were also identified by Professor Joseph Carens of the University of Toronto in his book review the same year.
First, the Citizenship Clause sets forth a constitutional rule guaranteeing citizenship to a category of persons. That rule itself expresses the consent of the community, and even on the book's own theory, there should be no need to look further. Nonetheless, the authors of the book assert that the well-established traditional interpretation of the Citizenship Clause would be inappropriate under a consent-based theory, because it confers citizenship on children born to temporary visitors and illegal aliens. The authors attempt to distinguish between permanent resident aliens, on the one hand, and temporary visitors and illegal aliens, on the other, claiming that the community consents to the membership of the children of permanent resident aliens but
4 See, e.g., Joseph H. Carens, Who Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States, 37 U. Toronto L. J. 413 (1987); David A. Martin, Membership and Consent: Abstract or Organic?, 11 Yale J. Int'l L. 278 (1985); David S. Schwartz, The Amorality of Consent, 74 Cal. L. Rev. 2143 (1986).
5 Gerald L. Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485 (1987).
not to the membership of children of temporary visitors or illegal aliens. This argument, however, is circular: the only evidence that the United States has consented to the membership of the children of permanent resident aliens is the same evidence that supports the traditional jus soli rule, which is broader.
Second, the revisionist argument requires a new interpretation of the language "subject to the jurisdiction" of the United States, in order to reconcile the theory with the language of the Citizenship Clause. The authors claim that the meaning of "jurisdiction" in the Citizenship Clause is: "a more or less complete, direct power by government over the individual, and a reciprocal relationship between them at the time of birth, in which the government consented to the individual's presence and status and offered him complete protection." (p. 86 (emphasis added)). In other words, a person is not "subject to the jurisdiction" of the United States unless the United States consents to the person's status as a citizen. This is completely circular, and so would really guarantee no one citizenship at birth. And it has no relation to any definition of "jurisdiction" that anyone else has ever proposed. This peculiar definition of "jurisdiction" should be regarded as demonstrating the impossibility of the revisionist project: there is no reasonable interpretation of the constitutional language that will accomplish the revisionists' goals.
Third, the book sometimes states that a person is "subject to the jurisdiction" of the United States only if that person owes no allegiance to any foreign country. (pp. 83, 86.) But this claim contradicts the book's own thesis that children born to permanent resident aliens.are U. S. citizens. It contradicts the legislative history of the Fourteenth Amendment, which emphasized the citizenship of the children of Chinese immigrants, and it directly contradicts the Supreme Court's decision in United States v. Wong Kim Ark, which the authors otherwise attempted to preserve.
(A similar error has occurred when other proponents of a change in the citizenship laws (but not Professors Schuck and Smith, who do not make this error) have called attention to a fragment of the legislative history in which Senator Howard stated that the Citizenship Clause "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." Cong. Globe, 39th Cong., 1st Sess. 2890 (1866) (remarks of Sen. Howard). This fragment does not support the revisionist interpretation. There are only two plausible interpretations of this fragment: either the language "foreigners, aliens, who belong to the families of ambassadors" refers to a single class of "foreigners who belong to the families of ambassadors, " or the language includes both foreigners in general and aliens who belong to the families of ambassadors. The first meaning simply confirms the traditional interpretation of the Citizenship Clause -- diplomats' children are not included. The second meaning does not support the revisionist interpretation at all, but would mean that no children of foreigners, not even children of permanent residents, would be U.S. citizens. Only citizens' children would be citizens. This would mean that the Fourteenth Amendment had suddenly shifted U.S. citizenship law from the common law jus soli rule to the Continental jus sanguinis rule, and that Wong Kim Ark was wrongly decided. This extreme change would not only have escaped the notice of the Supreme Court; it would also have escaped the notice of the other Senators, who debated Senator Howard's proposal on the understanding that it would confirm the citizenship of children born to Chinese immigrants and Gypsies. Clearly, the first interpretation of this fragment is correct: Senator Howard was articulating the traditional interpretation of the Citizenship Clause.)
Fourth, the authors characterize their interpretation of "subject to the jurisdiction" as adding "a transforming consensual conception" to the traditional jus soli rule. (p. 85.) But the legislative history makes it very clear that the framers of the Fourteenth Amendment were not trying to adopt a transformative new conception of citizenship by consent. That was what the Supreme Court had done in the infamous Dred Scott decision, excluding African- Americans from the Jus soli rule on the ground that whites did not consider them appropriate partners in the political community. The framers sought to overturn that innovation, and to reaffirm on a racially neutral basis the same principles that had always governed American citizenship for persons of European descent. The Supreme Court has rightly emphasized:
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.
United States v. Wong Kim Ark, 169 U.S. 649, 676 (1898).
Fifth, the book claims that the framers of the Fourteenth Amendment could not have contemplated conferring citizenship on children of illegal aliens "for the simple reason that no illegal aliens existed at that time, or indeed for some time thereafter." (p. 95). This too is a fallacy. The federal government was not actively engaged in regulating immigration from Europe before the Civil War, but many of the states were. And, more importantly, the federal
1 I have discussed antebellum state immigration law at length in the article "The Lost Century of American Immigration Law (1776-1875), " 93 Colum. L. Rev. 1833 (1993). I should add that, although lawyers have often succumbed to the myth that there was no immigration law government itself had been attempting to prohibit the international slave trade, a form of involuntary immigration. Under the revisionist theory, children born in the United States to illegally imported slaves would not have been guaranteed citizenship by the Fourteenth Amendment, because the United States government did not consent to their parents' presence in the country. This would contradict the clear purpose of the Civil Rights Act of 1866 and the Fourteenth Amendment to overturn the Dred Scott decision and to guarantee U.S. citizenship to all persons of African descent born in the United States.
Thus, for numerous reasons,7 the revisionist argument provides no legally tenable basis for altering the traditional interpretation of the Citizenship Clause of the Fourteenth Amendment. All persons born in the United States and subject to its jurisdiction are citizens. Neither Professors Schuck and Smith nor any other revisionists have put forward any plausible interpretation of the language "subject to the jurisdiction" of the United States that would accommodate their argument. And their argument cannot be squared with the clear tenor of the legislative history.
If Congress attempts to amend the citizenship statutes without a constitutional amendment, it will be acting unconstitutionally. The courts are certain to invalidate such action and vindicate the children's citizenship just as the Supreme Court did in Wong Kim Ark. Unfortunately, however, the courts' decision will come only after a period of severe uncertainty
before the Civil War, professional historians have been aware that such law did exist.
7 I will not devote space here to another historical error in the book, the misinterpretation of the 18th Century Swiss author Jean Jacques Burlamaqui. This error provides another weak link in the book's argument, but explaining its significance would unduly trespass on the Committee's time.
for the government and hardship for the children affected by the legislation. It is one thing for academics to propose a speculative new theory and submit it to professional refutation, but quite another thing to experiment with the rights of U.S. citizen children.
III. REASONS WHY THE CURRENT CITIZENSHIP RULE SHOULD BE RETAINED
The current rule of broad jus soli citizenship has many advantages that deserve strong emphasis in evaluating the desirability of change. These include advantages for U.S. society as a whole, and advantages for all native-born citizens, as well as the advantage of protecting the children who gain citizenship by the breadth of the rule.
The realities that the jus soli rule addresses also deserve emphasis. Changing the citizenship rule would not remove the children of illegal alien parents from the United States. Nor would it make any substantial contribution to the enforcement of the immigration laws. Whatever the citizenship rule may be, many thousands of these children will remain in the United States, because the U.S. government will not want to expend the resources necessary to find, process and remove them and their parents. Given that so many of them will remain, the United States benefits greatly by recognizing them as citizens.
A. The Social Benefits of Unity
One benefit that the United States derives from the breadth of its jus soli rule is the benefit that the Framers of that rule intended -- the United States population does not include a caste of hereditary aliens. One need only compare the situation in European countries that have refused citizenship to multiple generations of foreign "guestworkers" to gain insight into the tragedies we are avoiding. Professor David Martin (now General Counsel of the INS) made this point tellingly in his review of the Schuck and Smith book:
We have no European-style 'second generation problem' here, in part because we cannot have second generation aliens. ... [If the children] stay here, a secure citizenship status forms a basic foundation for the shaping of identity and involvement in the polity. They are thereby encouraged to embrace life here as full participants, not as half-hearted, standoffish 'guests.' Equally important, other citizens are induced to treat them as coequal members of the polity, not as intruders who stay too long.'
The assimilative advantages of birthright citizenship forestall social conflict. Those who worry about the "disuniting" of America should be the last to favor the creation of a hereditary caste of alien residents.
B. The Advantages to Other Native-Born Citizens
The bright-line character of the jus soli rule protects all persons born in the United States, including the children of U.S. citizens. At present, proof of citizenship reduces to proof of place of birth, a fact that a genuine birth certificate can reliably evidence. Adults who were born in the United States do not find themselves called upon to demonstrate the immigration status of their parents at the time of their birth, or of their grandparents at the time of their
8 Martin, supra note 4, at 283-84.
parents' birth. Such genealogical inquiries would become routinely necessary if the jus soli rule were modified, as they are necessary in countries that base citizenship on descent.
The substitute rules proposed in the bills and joint resolutions vary in the complexity of their criteria for citizenship. Under some versions, both the immigration status and the place of residence of the parents matter. Under some versions, any lawful status of the parents suffices, while under others, only particular lawful statuses suffice. H. J. Res. 93 adds conditions concerning the time of the parents' entry.
It is difficult to imagine how such determinations could be made reliably by hospital personnel at the time of birth. Even if supporting documents were always available, deciding from a complex fact situation whether an alien was in lawful status on a given day can become an extraordinarily difficult undertaking. In fact, presumably such contemporaneous determinations would not be conclusive, and citizens might find their citizenship challenged because of defective government records decades after memories had faded and witnesses had died.
Perhaps these problems could be handled by establishing a centralized nationwide registry of personal status and a national identity card. The United States has traditionally avoided such a system, associating it with a police state.
C. The Benefits of Protecting the Children of Illegal Aliens
Currently, the children born to illegal alien parents in the United States become citizens at birth. This citizenship does not prevent the punishment or deportation of their parents, but it insulates the children from some of the dangers of illegal status. Since the children cannot help being born here, and are obviously not to blame for their parents' transgressions, this insulation is highly appropriate. At a minimum, the children should not be denied citizenship without being given compensating protections for their human rights.
The present proposals are therefore incomplete. They deny the children the status of citizenship, but they establish no compensating protection for the children.9
Turning innocent children into hereditary illegal aliens would blight their lives severely. As the courts have recognized, illegal aliens "'are virtually defenseless against any abuse, exploitation, or callous neglect to which the state or the state's natural citizens and business organizations may wish to subject them."' Plyler v. Doe, 457 U.S. 202, 219 n.18 (1982) (quoting from Doe v. Plyler, 458 F. Supp. 569, 585 (E.D. Tex. 1978)). The continuous threat of deportation inhibits illegal aliens from seeking the protection of the law; that is, of course, a major pail of their attraction for unscrupulous employers." Nor is the law generous in compensating for their vulnerability. The current trend is toward broad disqualification of illegal aliens from benefits and services available to the general populace. States may not have the
9 In fact, the proposals are radically incomplete in another sense: having withdrawn one status, they do not specify what the children's status will be instead. I assume that most proponents of change contemplate that the children of illegal aliens will also be illegal aliens, and deportable as such. This would not necessarily follow from the current proposals. There is no deportation ground in the current statute that covers the case of persons born as aliens in the United States, because they have never entered and have broken no laws. For this reason, children born in the United States to foreign diplomats are considered lawful permanent residents. See Nikoi v. Attorney General, 939 F. 2d 1065 (D.C. Cir. 1991); Matter of Huang, 11 I. & N. Dec. 190 (Reg. Comm. 1965).
10 See Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 Wis. L. Rev. 955, 992-97, 1003-04.
power to do this without federal authorization, but the courts are likely to defer to nearly any disqualification that Congress should choose to enact. Although the Supreme Court prevented Texas from excluding illegal alien children from its schools in Flyler, even there it suggested that it would have applied a different standard of review if Congress had authorized the exclusion. 457 U.S. at 225-26. California's Proposition 187 attempts (thus far, unsuccessfully) to bar illegal alien children from education, health care, and even from state intervention to protect them from child abuse.
Whatever the vagaries of future legislation, the Citizenship Clause guarantees that nativeborn children will not suffer such comprehensive deprivation on account of their parentage. Nor can such disabilities become hereditary. As their discussion of the Chinese on the West Coast demonstrates, the Framers of the Fourteenth Amendment perceived that avoidance of such harms was an issue of constitutional dimension, which should not be dependent on temporary shifts in public opinion.
Finally, mention should also be made of a special category of children: those who would otherwise be stateless. Another benefit of the Citizenship Clause has been that no children are born stateless in the United States. No special provision has been needed to accomplish this.11 If the jus soli rule were modified, then children born to stateless parents, or children born to parents whose nationality would not descend to them under foreign law, would have no country of their own. Provision would have to be made to avoid this consequence."
11 But see 8 U.S. C. 1401(f) (presuming that children of unknown parentage found in the U.S. before age five were born in the U.S., in order to avoid statelessness).
12 The United States is internationally committed to respect the right of every child to acquire a nationality, under Article 24(3) of the International Covenant on Civil and Political
D. The Benefits of Protecting Children of Temporarily Admitted Aliens
Some of the proposals would limit U.S. citizenship to children of citizens and "legal
residents," and some others would limit U.S. citizenship to children of citizens and "permanent resident aliens." The elimination of citizenship for children of other lawfully present aliens therefore requires brief attention.
H.R. 1363, which limits citizenship to the children of "permanent resident aliens," illustrates the problem. Permanent resident aliens are only one category of the aliens who are permitted to reside in the United States indefinitely. Lawful alien residents also include asylees, parolees, aliens whose deportation has been withheld, or other recipients of discretionary relief. This formula would permit Congress to determine the citizenship status of an alien resident's descendants by controlling the alien's status label. It therefore possesses enonnous potential for the creation of categories of hereditary alien inhabitants.
The alternative formula, "legal resident," might or might not create the same problem, depending on how it would be interpreted. For example, under a temporary workers' program that authorized alien workers to remain in the United States in renewable one-year increments, one might conclude that the workers were not "residents." Such a program could replicate the guestworker system that has caused such a dilemma in Europe.
Moreover, it is difficult to see why granting citizenship to children of temporarily admitted aliens should be a subject of controversy. Professors Schuck and Smith objected to these citizens, but wholly on theoretical grounds, and their theory has been sharply criticized.
Rights.
During the period of the parents' lawful presence, the children would be permitted to remain anyway, and the citizenship of the children creates no substantial obstacle to removal of the parents when that period expires. There is simply no social problem here justifying a constitutional amendment.
IV. FURTHER PROBLEMS RAISED BY PROPOSALS TO AMEND THE CITIZENSHIP CLAUSE
Aside from the merit of the existing citizenship rules, the current proposals raise a number of problems of constitutional dimension. Some of these problems are specific to particular proposals, while others are common to all the proposals.
A. Sex Discrimination
Some of the proposals for new citizenship rules (H.R. 705, H.R. 1363, H. J. Res. 64) discriminate on grounds of sex, by making the citizenship of the child turn on the status of the child's mother only. H. J. Res. 64 would actually write sex discrimination into the Constitution itself Children born in the United States would only be U.S. citizens if their mothers were "citizens or legal residents." This would be objectionable in itself, and could have unforeseen consequences for constitutional interpretation generally.
The Constitution is now essentially gender- neutral. There is an obsolete provision in section 2 of the Fourteenth Amendment that reduced the representation of states that disenfranchised male voters, thereby implying the propriety of disenfranchising female voters. This implication has been superseded by the Nineteenth Amendment. It would be highly offensive to write gender discrimination into section 1 of the Fourteenth Amendment. The lower courts have held that the pre-1934 jus sanguinis rule, under which children born to U.S. citizen parents outside the United States were U.S. citizens only if their fathers were U.S. citizens, denied the equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment. See, e.g., Wauchope v. U.S. Dep't of State, 985 F.2d 1407 (9th Cir. 1993); Elias v. U.S. Dep't of State, 721 F.Supp. 243 (N.D.Cal.1989); cf. Pub. L. No. 103-416, 101(a), 108 Stat. 4306 (providing a remedy for most such cases). H. J. Res. 64 would apply similar discrimination to children born within the United States, which is an even more egregious denial of equality. As a later constitutional amendment, however, it would take legal precedence over the equality guarantee of the Fifth Amendment.
The constitutional enshrinement of sex discrimination in citizenship law would legitimate sex discrimination in a manner that might not be confined to the area of citizenship. Constitutional interpretation proceeds by the inference of general principles from the entire Constitution as well as by the narrow reading of specific provisions. The proposed amendment might affect case law concerning the equal treatment of fathers in other contexts, or sex discrimination more generally. In the long term, such consequences of constitutional amendments are difficult to predict.
Moreover, the sex-discriminatory proposals exhibits disturbing inattention to the realities of female immigration. Congress has previously displayed its awareness of these realities, enacting several modifications of the immigration laws in recent years to address problems of spousal abuse. See, e.g., Pub. L. No. 103-322, 40701-40703, 108 Stat. 1953-55 (1994). A substantial number of undocumented women are deliberately kept undocumented by their citizen or lawful resident alien husbands as a means of control. See Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593 (1991). By specifically denying citizenship to children born in such marriages, H. J. Res. 64 would only increase the opportunity for abuse.
B. Consequences of U.S. Citizenship
Some of the proposals would repeal the Citizenship Clause or remove it from the Fourteenth Amendment. These proposals may have unintended consequences for the rights of U.S. citizens generally, and may increase their vulnerability to involuntary expatriation.
At present, the Citizenship Clause appears as the first sentence of the Fourteenth Amendment, and prefaces a declaration of rights, including the prohibition against a State's abridging the privileges or immunities of citizenship. The Citizenship Clause is currently interpreted by the Supreme Court not only as defining who shall receive citizenship, but providing some of the content of citizenship. In Afroyim v. Rusk, 387 U.S. 253 (1967), Justice Hugo Black discussed the history of the adoption of the Fourteenth Amendment as demonstrating that the citizenship that it guaranteed was not "a fleeting citizenship" but a permanent one, beyond the power of Congress to cancel by involuntary expatriation. This important right to the pen-nanence of citizenship, which the constitutions of some other countries set forth explicitly, is deduced in the United States from the structure and history of the Fourteenth Amendment.
Dismantling the Fourteenth Amendment may endanger the basis of this protection. If the Citizenship Clause is repealed and replaced by a separate article, then the legislative history of the Fourteenth Amendment will no longer be controlling, and the structural connection between the Citizenship Clause and other rights protections will be broken. The language and history of the new article may create a new starting point for interpretation. The Congress should exercise great care that essential rights of all U.S. citizens are not sacrificed in the process.
C. Threat to Other Constitutional Values
Section One of the Fourteenth Amendment is one of the central texts of the United States Constitution. It contains the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. The adoption of this Amendment has been called a second American Revolution that perfected the first American Revolution, by rejecting the legacy of slavery and racial inequality.
The Citizenship Clause, which overturned the Dred Scott decision, was an integral part of that process. It redefined the national identity of the United States as ethnically inclusive. One could no longer say that the United States was a "white man's country. " Unlike in ethnically defined nations, U.S. citizenship is not a matter of who your parents were. Being born in this land of freedom is enough.
Amending the Citizenship Clause would doubly attack that legacy. First, it would set a precedent for the diminution of Fourteenth Amendment rights. The Congress has observed healthy inhibition against making amendments that cut back on the original Bill of Rights, and parallel hesitancy to cut back on the Fourteenth Amendment is justified.
Second, amending the Citizenship Clause would amount to another redefinition of the American national identity. Descent would receive new prominence; openness and equality would be deemphasized. These proposals are not merely technical changes to facilitate the enforcement of the immigration laws. They stake out controversial positions on American national identity. It is no coincidence, for example, that H. J. Res. 87 couples a change in the birthright citizenship rule with a constitutional requirement of English proficiency for naturalization. These positions should be openly admitted and openly debated.
Perhaps the time has come for the United States to be like other nation-states. I hope not, particularly in a decade when ethnic nationalism is resurgent globally. But if so, it should be done with a frank recognition of what we are giving up.
V. CONCLUSION
The purpose of this testimony is two-fold. First, it provides a legal analysis of congressional power over citizenship in the absence of a constitutional amendment. Congress has no power to enact the current proposals as ordinary legislation.
Second, this testimony attempts to identify some of the problems raised by the proposals for constitutional amendments. There is strong reason to believe that the minor gains sought by the proponents of these amendments are outweighed by severe disadvantages.