October 17, 2010
Should Children Born in the United States Automatically Become Citizens?
Should Children Born in the United States Automatically Become Citizens? Becker
The provision of the Fourteenth Amendment to the American Constitution that appears to (see Posner's discussion for why I say "appears to") guarantee all children born in the United States automatic citizenship applies not only to children born to parents who are in this country illegally, but also to students, tourists, and others who are in the country on temporary visas. Yet most of the anger felt about giving citizenship to all children born here is directed at children of illegal immigrants.
This is partly due to the illegality of the presence of their parents in the US, and partly to the evidence that some women cross the Mexico-US border, or come from other countries, just to have their children become Americans. The hostility is also fueled by the apparently correct belief that children born of illegal parents are a significant contributor to the total number of births in the United States. The Pew Hispanic Center estimates that about 8% of all children born in the US in 2008 have parents who are in the country illegally. This is about double the estimated percent of the US population that are here illegally. Although it is not possible to know how accurate these estimates are, one would expect Mexican immigrants to have relatively many children, even if the children did not automatically become citizens, since these immigrants tend to be younger and less educated than the typical American. Extensive studies would be necessary before one could know how many of the children of illegal immigrants were born here because of the guarantee of American citizenship.
Some members of Congress and others have proposed a constitutional amendment to eliminate the granting of citizenship to children born in the United States without at least one parent who is a citizen or has a green card. Clearly, they are mainly concerned about excluding from citizenship children born to illegal immigrants. Yet since their ultimate concern is the level of illegal immigration, denying citizenship to the children of these immigrants would be a roundabout and very imperfect way of discouraging illegal immigration.
It is highly unlikely that most of the approximately 11 million illegal immigrants in the United States will ever be forced to return to Mexico, or wherever else they came from. Most likely is that they will either eventually be given amnesty, and hence citizenship, or they will become permanent residents without citizenship, but with many of the rights of citizens. These include the right to receive medical care in hospitals, and to send their children to American public schools. Under either of these scenarios, it will not make a big difference whether children of illegal immigrants born in the US did or did not automatically become citizens since they would de facto have most of the rights of citizens.
I favor generous legal immigration since legal immigrants of different skill levels add a lot to a country's human capital (see my proposal to sell the right to immigrate discussed in the June 25 issue of The Economist). However, I oppose illegal immigration because it corrupts the whole immigration system, and it is unfair to the millions of persons who wait for years to immigrate to this country legally. Probably, little can, or should, be done to greatly reduce the number of illegal immigrants already here. However, it is very feasible to reduce the inflow of additional illegal immigrants, while at the same time increasing the number of legal immigrants.
Finding an effective way to curtail the inflow of illegal immigrants seems to be a far better way to deal with the issue of illegal immigrants than concentrating a lot of effort and opposition on trying to obtain a constitutional amendment that eliminates the right to citizenship of children born in America to parents who are not American citizens.
The Controversy over Birthright Citizenship—Posner
Recently, as an aspect of growing hostility to immigrants to the United States fueled by our continuing economic crisis, questions have been raised concerning the desirability of what is called "birthright citizenship." The term refers to awarding citizenship to everyone born in the United States (with a few very minor exceptions, such as the children of accredited foreign diplomats and of foreign heads of state on official visits to the U.S.), including the children of illegal immigrants whose sole motive in immigrating may have been to confer U.S. citizenship on their as yet unborn children. This rule—though thought by some (not by all) to be compelled by section 1 of the Fourteenth Amendment, which provides that "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," but which in any event is codified in a federal statute which provides that "the following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof"—can indeed be criticized. "The Federation for American Immigration Reform estimates that 165,000 babies are born each year in the United States to illegal immigrants and others who come here to give birth so their children will be American citizens." Kelley Bouchard, "An Open-Door Refugee Policy Has Its Critics," Maine* Sunday Telegram*, June 30, 2002, p. 11A. There is said to be "a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.'" John McCaslin, "Inside the Beltway: Rotund Tourists,"* Wash.** Times*, Aug. 27, 2002, p. A7.
We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. That abuse provides an argument for abolishing birthright citizenship. A constitutional amendment may be required to change the rule, thoiugh maybe not, see Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116–17 (1985); Dan Stein & John Bauer, "Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants," 7* Stanford L. & Policy Rev. *127, 130 (1996), since the purpose of the rule was to grant citizenship to the recently freed slaves and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. If birthright citizenship is not commanded by the Constitution, it can be eliminated by amending the statutory provision that I mentioned.
But closing the loophole that encourages foreigners to come to the United States solely to make their future children U.S. citizens would not address the larger question of birthright citizenship. For undoubtedly most children born in the United States to illegal immigrants are not born to persons whose motive for immigrating was based in whole or significant part on a desire to have U.S. citizen children.
Most countries outside the Western Hemisphere do not recognize birthright citizenship; instead they base citizenship of children on the citizenship of their parents or other lawful connections between the parents and the country (ethnicity or religion, for example). Should we adopt that approach, by constitutional amendment if necessary? (It may not be necessary, as I have suggested, but I take no position on that question.) The problem is that though it would discourage people from coming to the United States for the sole or main purpose of having children who would be U.S. citizens, it would probably on balance increase the size of the illegal immigrant population. The United States, at least when the economy is healthy, is a magnet for illegal immigrants, most of whom manage to avoid being deported. Their children born here are U.S. citizens despite the parents' illegal status. If birthright citizenship were abolished, these children would not be U.S. citizens, at least not automatically as at present. Nor would their children. One would have, as in some European countries, generations of illegals—persons who had never lived anywhere else, who could not feasibly be deported (and to where?—the country of origin of their grandparents, a country with which they had no connection, and the language of which they did not speak?). If many illegal immigrants do not become well assimilated in the United States (many do, however), at least their children born here probably do. And that is a considerable benefit to the nation that eliminating birthright citizenship would undermine, perhaps eliminate.
If most illegal immigrants were deported within a few years of their arrival in the United States, the problems created by birthright citizenship would largely disappear; if the parents had children born here, still they would be young children and the parents would bring them back home with them when they were deported and most of these children, grown to adults, would not come to live in the United States though entitled to do because they were U.S. citizens. But illegal immigration to the United States has overwhelmed the resources that the political process is willing to allocate to exclusion and deportation (given demand by U.S. employers for immigrant labor, legal or not), and as a result many illegal immigrants have children who grow to maturity in the United States and know no other country. For to be illegals would create what in Europe is called a "helot" population, helots in ancient Greece having had an ill-defined intermediate status between slaves and free citizens.
Concern with birthright citizenship is probably misplaced, because the most serious problem of U.S. immigration policy is not who should be excluded but who should be admitted, and that problem should be tackled first. We are handicapping our growth by refusing to allow easy admission of those immigrants who are most likely to foster economic growth by virtue of their IQ, skills, or wealth. Instead we continue to emphasize lotteries and family-reuniting as the principal criteria of lawful immigration.