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Opinion: The Tea Party and an Inconvenient Constitution

Jun 7, 2010 – 2:45 PM
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Michael Medved

Michael Medved Contributor

(June 7) -- Tea party activists insist that the Constitution means what it says and hope to persuade their fellow citizens to embrace our national charter even when its plain language may seem inconvenient or illogical.

So why are some of them so quick to embrace an effort to deny automatic citizenship to native-born children of those who entered the country illegally?

Within a week of his landslide primary victory, tea party favorite Rand Paul told a reporter for English-language Russian TV that "we're the only country I know that allows people to come in illegally, have a baby, and then that baby becomes a citizen. And I think that should stop also."

Many Americans might agree with Paul and tea party activists that "birthright citizenship" damages the national interest. The problem is that this view doesn't conform to the clear, concise language of the Constitution's 14th Amendment (adopted in 1868), which states: "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."

Sen. Jacob Howard of Ohio, author of that citizenship clause, affirmed in congressional debate that this meant that "every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." The phrase "subject to their jurisdiction" meant specifically to exclude "Indians who are born within the limits of the United States, and maintain their tribal relations ..."

The idea of birthright citizenship goes back to British law, articulated in the 1608 decision Calvin's Case, and affirmed by the Supreme Court 300 years later (United States v. Wong Kim Ark, 1898) using language which, according the conservative Heritage Foundation, "is certainly broad enough to include the children born in the United States of illegal as well as legal immigrants ..." (The Heritage Guide to the Constitution, page 384-5).

Nevertheless, more than 90 members of the House have co-sponsored "The Birthright Citizenship Act," denying automatic citizenship to native-born children of those who entered the country illegally. Even in the unlikely event that this faction managed to cobble together majorities in both houses and win a presidential signature, there's little doubt that the Supreme Court as currently constituted would overturn the legislation for violating the Constitution and upsetting time-honored practice involving millions of current citizens.

This means that Paul and those who support his position need a constitutional amendment -- requiring two-thirds votes in both House and Senate, plus ratification in legislatures of at least 38 states. It's easy, of course, to think of 13 overwhelmingly Democratic states that would never assent to such a constitutional change, especially since Paul himself puts the issue in nakedly partisan terms: "If you look at new immigrants from Mexico," he told Russian TV, "they register 3 to 1 Democrat, so the Democratic Party is for easy citizenship and allowing them to vote."

Aside from political considerations, elimination of birthright citizenship faces daunting practical problems. Would hospitals be required to check on the immigration status of expectant mothers, and put a special note on birth certificates if they lack proper documentation? What about children of mixed marriages -- born of a legal immigrant married to an illegal immigrant (a hugely common occurrence)? No new standard could be applied retroactively, stripping citizenship from those who've enjoyed it for years because of their U.S. birth. This means literally millions of native-born citizens -- and voters -- feeling outraged at politicians trying to deny citizenship to others due to the illegal arrival of their parents.

In the deepest sense, the attempt to punish children for the actions of their parents before they were born goes against some of the deepest American values. A newborn baby, or an 18-year-old who's lived in America all his life and signs up to vote for the first time, can't be blamed for their parents' unauthorized entry years before. It's a core American principle that we judge individuals on their own merits (and demerits), not on the behavior of their parents. In most states, convicted murderers lose their right to vote. Does that mean that the children of such a criminal don't deserve citizenship status? Would Rand Paul suggest that the act of entering the nation illegally should have more intergenerational consequences than murder?

Attempts to deny citizenship to the native born, regardless of their parentage, make no sense constitutionally, politically, practically or ethically. They will also contribute to the ongoing marginalization of the Republican Party at precisely the time that conservatives struggle for a much-needed comeback.

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