Civil and Human Rights

Battling over birthright citizenship

Arizona state Sen. Russell Pearce, who sponsored his state’s controversial “show us your papers” law, kicked off this new year by unveiling model legislation aimed at ending the centuries-old practice of granting automatic citizenship to children born on U.S. soil.

As with his earlier law, S.B. 1070, Pearce’s target is illegal immigration. But this time his focus is to be children born in the United States to undocumented immigrants. Under the 14th Amendment, these children are automatically U.S. citizens — neither illegal nor immigrant. 

The goal — which Pearce unabashedly admits — is to force costly litigation in the hopes of taking a case on birthright citizenship to the Supreme Court.

Pearce is certainly no stranger to thorny constitutional litigation. The U.S. Court of Appeals for the Ninth Circuit is now considering his earlier bill — after a federal district court in Arizona stopped it from going into effect based on the likelihood that the courts would eventually strike it down as unconstitutional.

But setting up the Constitution’s guarantee of citizenship at birth for a legal showdown is a perilous gambit. It is also contradicted by the words of the Constitution and the most fundamental of American values.

The 14th Amendment 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.”

This was added to the Constitution after the Civil War and the abolition of slavery, and unquestionably places the question of citizenship with the federal government — and out of the hands of the states. Having lived through years of slavery and the Civil War, the drafters of the 14th Amendment’s Citizenship Clause would not have made the citizenship of freed slaves open to easy revocation by pro-slavery states. Nor did they write the Citizenship Clause to allow states to establish categories of second-class citizens.

With his model legislation, Pearce appears to be deliberately setting up a showdown between state and federal power in an area where the Constitution has decisively taken away power from the states. The Constitution vests the federal government with sole authority to resolve questions of naturalization, and the conditions of citizenship have been fixed in our federal charter since Reconstruction.

Pearce’s first attempt to usurp federal authority over immigration law was his earlier immigration bill. This new attack on birthright citizenship by Pearce and other state legislators is an even more obvious power grab — and just as unconstitutional.

It is also deeply misguided. The 14th Amendment, which was drafted and ratified against a backdrop of prejudice against newly freed slaves and various immigrant communities, was added to the Constitution to place the question of who should be a citizen beyond the politics and prejudices of the day. The big idea behind the 14th Amendment is that all people are born equal, and, if born in the United States, are born equal citizens — regardless of color, creed or social status.

It is no exaggeration to say that the 14th Amendment is the constitutional embodiment of the Declaration of Independence and lays the foundation for the American Dream. Because of the 14th Amendment, all American citizens are equal and equally American. Whether one’s parents were rich or poor, saint or sinner, an American child will be judged by his or her own deeds.

Launching an attack on the constitutional guarantee of citizenship at birth may result in a lot of political fireworks for an ambitious politician like Pearce. But it is a sorry way to ring in the new year.

Elizabeth B. Wydra is the chief counsel of the Constitutional Accountability Center. This article originally appeared in Politico. The Star-Ledger is a member of the Politico network (

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