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Why Repealing Birthright Citizenship is More Difficult Than You Think

by Guest Contributor Tomás F. Summers Sandoval Jr., originally published at Latino Like Me


In recent months, the “movement” to repeal jus soli–or “birthright citizenship–seems to be gathering steam.

I use the term “movement” cautiously because, at heart, this is really about political posturing by the right. While there are groups of people who have consistently advocated for this kind of revision of the US Constitution, they haven’t done anything in the last half year to warrant this new attention. What has changed is the number of high-profile politicians and pundits who have made this their “cause of the day” in the hope of securing their election, re-election, and/or high ratings.

The most visible evidence of their work is a now mainstream discussion of the danger of so-called “anchor babies,” or children born to “illegal” immigrants. As this rightist argument goes, the 14th Amendment to the US Constitution–which bestows citizenship on anyone born in the US–acts as a motivation for illegal immigration by promoting a wave of pregnant migrants who come to the US to have children and then use those children to secure their own residency.

I want to point out a few things that are missing in the wider debate, “realities” which should guide your understanding of this very important issue. The first one is simple enough–this “movement” has very little chance of ever being successful.

Repealing or amending part of the US Constitution is an extremely difficult thing to do. It is prohibitive by design, since nobody wants a country where the fundamental laws of the land can change with the whims of the age. Accordingly, changing any amendment requires the rarest of political conditions. To do it, supporters of a new Amendment (which is how you amend another Amendment) would need to follow one of two courses: 1) get a two-thirds majority of both the House and the Senate to pass the Amendment, and then get three-fourths of all States to approve it; or 2) get two-thirds of all States to hold a Constitutional Convention proposing the Amendment, and then get three-fourths of all States to approve it. Neither one of these scenarios has a chance of mustering even the slightest chance of coming to pass relating to the 14th Amendment.

Now, this reality is an important one to grasp, before we engage in any other debate about the issue. The only reason this “movement” has seemingly become so successful is because politicians–from Lindsay Graham to John McCain–are spouting off about “anchor babies” and the reasonableness of having hearings on repealing jus soli. But these politicians know the process that is required of such a move. They know it has no chance of passing, let alone ever being considered by the House or Senate under this (or any recent) configuration. So why doth they protest?

So, before we continue, let’s get our head around the fact that this is an esoteric discussion being led by politicians who are trying to secure their electability among a small yet vocal fringe of their party.

The second reality passing us by is the second point I would like to make: repealing birthright citizenship opens a mess of legal complexities, many of which do not benefit the US. Supporters of this act like the issue is an easy one since all it would do it stop Mexicans from coming to the US and having their babies. What it would really do is provoke a global war on citizenship. Continue reading