Revisiting The Constitution's 'Birthright Citizenship'

The 14th Amendment to the Constitution — the one that guarantees "birthright citizenship" — has become a political lightning rod in the days since Republican Sen. Lindsey Graham suggested it be changed. Host Guy Raz explores the debate through the story of Ruben Lopez, who was born in the U.S. to parents who arrived here illegally and is now a senior design engineer with Chevron. Also, Harvard professor Randall Kennedy weighs in on the history of the 14th Amendment and its chances of survival.

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GUY RAZ, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Guy Raz.

The first line of the 14th Amendment is pretty clear: All persons born or naturalized in the United States are citizens of the United States. It's a sentence many Republicans say ought to be re-examined and it's becoming a campaign issue, prompted in part when Senator Lindsey Graham from South Carolina said this on Fox News.

Senator LINDSEY GRAHAM (Republican, South Carolina): Birthright citizenship, I think, is a mistake. That we should change our Constitution and say if you come here illegally and have a child, that child's automatically not a citizen.

RAZ: Now, citizenship in most of the Western world is not granted based on where you were born. In fact, the U.S. is rare. In a moment, we'll hear about the history of the 14th Amendment, whether you can change the law without changing the Constitution and how it's done overseas.

But first, a story.

Mr. RUBEN LOPEZ (Senior Design Engineer, Chevron): My name is Ruben Lopez. I'm 30 years old and I live in Downey, California.

RAZ: Ruben's parents left Guadalajara, Mexico in 1978. And at the California border, they found a coyote, a guide, who they paid to help them across the desert.

Mr. LOPEZ: They were trying to walk faster and faster and my mom and some other lady, I think the other lady was pregnant at the time, couldn't quite keep up. So I think at one point, I think my mom told me that the coyote says, forget about them, leave them behind. And obviously, my dad wasn't going to allow that to happen.

RAZ: Ruben was born in Downey, California two years later. And a short time after that, his parents took him back to Mexico, where Ruben's sister was born. Then in 1985, the family returned to California. Now, because Ruben was born in the U.S., he came across legally with an uncle, but his mom and dad and sister had to sneak in illegally.

So, Ruben grew up in fear that one day, his dad and sister and mom, who was a seamstress, will be deported.

Mr. LOPEZ: During a couple of times she would get home scared because she either had heard that there was a INS raid on a warehouse next to where she was working on. There were rumors that INS is going to show up at their workplace. She would come home worried.

RAZ: There were a few close calls, but the family managed to stay together. Ruben went on to graduate from UCLA with honors. He paid for college with student loans. His sister, who was still considered an illegal immigrant at the time, wasn't eligible for those loans so she never went to university, even though she has no recollection of life in Mexico.

Now today, Ruben is a senior design engineer for Chevron. His sister is a citizen now, and as for his folks:

Mr. LOPEZ: My dad is now a U.S. citizen, my mom has been going to school to study about the U.S. government and the U.S. to be able to pass the test.

RAZ: The Lopez family was lucky they weren't caught. This year, immigration officials will deport more than 400,000 unauthorized immigrants, many of them with children born in the U.S.

Now according to a new study by the Pew Hispanic Center, children of illegal immigrants make up about 8 percent of all births in the U.S. now. Those who want to change the 14th Amendment say it wasn't designed to grant those children automatic citizenship. So we called Harvard Law professor, Randall Kennedy, to find out the history behind it.

Professor RANDALL KENNEDY (Law, Harvard University): The citizenship provision in Section 1 was introduced because of the Dred Scott decision. In Dred Scott, the Supreme Court ruled that people of African descent were not eligible for citizenship, whether they were free or not.

The reason for the ruling in Dred Scott was because the original Constitution, the Constitution of 1787, provided no criteria for citizenship. It referred to citizenship, but it didn't say who was a citizen. And so the question came up, well, are black citizens? And the Supreme Court in 1857 said, no, blacks are not citizens.

And so in 1866, the Congress passed a statute providing citizenship by birth. And then in 1868, the Congress decided to put a constitutional footing beneath that legislation.

RAZ: So in 1868, the 14th Amendment is passed on July 9, 1868. The first line of the 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.

Given the language of the first line of the 14th Amendment, is it clear, in your legal opinion, or could it be interpreted as it has been in the past to exclude certain people who are born or have been born in this country?

Prof. KENNEDY: Well, the words about, you know, subject to the jurisdiction of the United States. So if the United States was invaded and an invading army, you know, conquered part of the United States and there were children born to the invaders, they would not become citizens of the United States. Or the children of diplomats that are born in the United States, they're not citizens of the United States.

But those are really on the margins, obviously. And the great bulk of opinion has been that people born in the United States, even if the parents could not become citizens. So, for instance, Chinese people could not become citizens of the United States because they were not eligible for naturalization.

They had a child born here. The question came up, well, these people are not eligible for citizenship. Their child was born in the United States, is the child a citizen? And in 1898, the Supreme Court said yes.

RAZ: What would it take, in your view, to change the law in the U.S. that would remove automatic citizenship for the children of unauthorized or illegal immigrants born here?

Prof. KENNEDY: It would require a constitutional amendment.

RAZ: You couldn't do it by statute. Congress couldn't do it, for example.

Prof. KENNEDY: I don't think Congress could do it. Throughout the 1990s, there have been many proposals to prevent the children of persons present illegally from becoming citizens of the United States. And they haven't gotten anywhere. But if they were to pick up political steam, it would undoubtedly go to the Supreme Court and I think that the Supreme Court would invalidate such a proposal.

RAZ: As you outlined earlier, the purpose of the 14th Amendment was originally to deal with the issues that were raised in the reconstruction period. Do you think that there's an argument to be made that some people make that the original intention has already been dealt with, that the framers and the people who came up with the 14th Amendment never intended it to be a way for people to come here and have children and have those children become citizens?

Prof. KENNEDY: The issue of, you know, the children of people who could not themselves become citizens of the United States was on the minds of the people who framed the 14th Amendment. Again, in 1868, people from China were living in the United States. They could not become citizens of the United States.

And there was a discussion, there was a debate in Congress in 1868. Well, you know, what about the children of these people? I think that if you look back to 1868 and took a look at what were the aims of the framers, I think even under that scenario, you would come to the conclusion that the 14th Amendment should be allowed to remain as it is and it should certainly not be diminished.

RAZ: That's Randall Kennedy. He's a professor of law at Harvard Law School.

Randall Kennedy, thank you so much.

Prof. KENNEDY: Thank you very much.

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