Arizona State Senator Russell Pearce is preparing to introduce another bill to exclude and deport undocumented immigrants from his state. The Arizona Republic reports that Pearce will introduce a bill in January to strip the U.S.-born children of undocumented immigrants of their citizenship. If it passes, children of immigrants, who under federal law would still be considered citizens, would lose access to state administered programs.
Pearce is once again partnering up with Kris Kobach, who helped push the state’s racial profiling bill, SB 1070, last spring. In an email to the Arizona Republic, Kobach confirmed that he was working on a bill.
“We aren’t announcing anything yet, as the drafting is not complete, ” Kobach wrote to the paper.
The bill, if passed, is sure to be found in violation of the Constitution.
Pearce is not a lone crusader in his quest to fundamentally alter the Constitution’s guarantee of birthright citizenship. Key Republicans on Capitol Hill, including longtime immigration reform supporters Senators Lindsey Graham and John McCain, began denouncing the 14th amendment’s constitutional guarantee of citizenship for anyone born in the United States.
As Victor Goode explained, those arguing against birthright citizenship for the children of undocumented immigrants say that the framers did not intend to extend the right to immigrants without papers. Goode writes:
…here’s what the Republicans are talking about: The citizenship clause of the 14th Amendment, which was passed by Congress in 1866 and ratified in 1868. The clause comes as the amendment’s first words, stating, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United State and the States wherein they reside.”
Despite the apparently plain meaning of this provision, some critics argue that a close examination of the Congressional Record reveals that lawmakers never intended the provision to apply to the children of undocumented immigrants, even if they are born in the United States.
Michigan Sen. Howard Jacob, a Republican, authored the amendment’s birthright clause. During congressional debate over the clause’s language, Howard said that the provision would not grant citizenship to “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Today’s critics have seized on that statement. They claim it is why Congress included the phrase “subject to the jurisdiction thereof” in the citizenship clause. Immigrants today must conform to the laws of the U.S. to be subject to its jurisdiction, they argue, and therefore a person who’s in the country without papers cannot meet this condition and their children cannot claim citizenship by birthright.
But, of course, these originalist claims are hard to sustain in light of the fact that the 14th amendment itself was drafted to remedy the Consitution’s fundamental racial exclusion. Goode notes:
It’s also crucial to remember the larger sweep of history when divining original intent. The citizenship provisions of both the Civil Rights Act and the 14th Amendment were each necessary congressional interventions to overturn the Supreme Court’s Dred Scott decision, which held that African Americans were not citizens of the United States and never could be—because they were “a subordinate and inferior class of beings” and the framers never contemplated them as part of the political community.
While those sorts of overt, pernicious references to race have disappeared in more recent immigration lawmaking, it is clear that much of today’s anger over birthright citizenship is directed at the rapidly growing Latino population.
Though calls from Washington to abolish birthright citizenship have quieted recently, Pearce seems committed to keeping the fight alive in his state. Of course, Arizona’s not exactly lacking in legal battles over its immigration policies these days. The federal government, along with with several civil rights groups, is currently suing the state over SB 1070, arguing that the new law preempts federal efforts. Pearce and Kobach’s latest attempt is unlikely to get very far for the same reason. But the bill’s sure to add more flames to the fire of the national debate over immigration reform when it’s introduced in January, a month after the state’s ban on ethnic studies is set to go into effect. Stay tuned.