Leading GOP lawmakers are now taking issue with a key provision in a legal breakthrough that the early Republican Party hailed as one its landmark achievements: the 14th Amendment to the Constitution. The language that Republican members of Congress want to revisit grants citizenship to persons born in the United States, regardless of the nationality of their parents.
Democratic lawmakers and other critics say the GOP is only talking about birthright citizenship to stoke the highly charged immigration debate and turn out conservative voters during a critical midterm election cycle. And this afternoon, Wisconsin Democratic Sen. Russell Feingold, who chairs the Constitution Subcommittee, confirmed he has "no plans" to move forward with hearings into the 14th Amendment's citizenship language, echoing his party's case for comprehensive immigration reform, including an eventual path to citizenship for people now in the country illegally.
Nevertheless, the clamor among GOP leaders to revisit or revise the amendment's citizenship provisions continues to grow. South Carolina Sen. Lindsey Graham appeared on Fox News this week to discuss the issue of "anchor babies."
"Now, birthright citizenship doesn't make so much sense when you understand the world as it is," Graham said. Graham alleged that abuses stemming from the provision are common, with groups marketing visa packages at resorts to expectant families in China and elsewhere. And with other backers of the idea of a 14th Amendment review, Graham cited the increasing numbers of illegal Mexican immigrants crossing the border to have children in America. "Is this the way to award American citizenship — sell it to somebody who's rich, reward somebody who breaks the law?" he asked.
Graham has said he's considering offering a constitutional amendment to repeal the provision. Sen. Mitch McConnell of Kentucky, the chamber's minority leader, said he supports holding hearings on the issue, and Arizona Sens. John McCain and Jon Kyl and Alabama Sen. Jeff Sessions also say they favor re-examining the clause.
As Feingold made plain, such plans aren't likely to go anywhere in Congress. Indeed, all past efforts to move bills addressing the terms of U.S. citizenship have stalled out. As recently as last year, Republican Rep. Nathan Deal of Georgia (who is now running for governor) re-introduced his bill to put stipulations on birthright citizenship, and it didn't advance.
But critics say actual legislative progress on the question isn't the point: Democratic senators claim that their GOP colleagues are simply pandering to inflamed sentiments on the right on the issue of immigration, so as to motivate the conservative base in the November midterms.
"If you think it's a coincidence that this sudden discussion begins three months before an election, you'd be very, very mistaken," Independent Sen. Bernie Sanders of Vermont said on ABC's "Top Line." "This is a political issue." Sanders said that he thinks the issue deserves discussion but criticized the GOP's current presentation of the issue as "100 percent political."
Democratic Sen. Arlen Specter, in a separate interview with ABC, sharply criticized Republicans for attacking children.
"The political pandering on the immigration issue has reached the hysterical level," Specter said. "To try to direct the effort at the children born in this country is just preposterous. ... How can newborn children protect themselves if politicians want to gain political gain. ... I would be shocked if this idea would gain political traction, but I'm being shocked on a daily basis by the United States Senate." (The photo above shows an illegal Mexican immigrant and his wife and son at an Immigration and Customs Enforcement facility in Florence, Ariz.)
The 14th Amendment Clause in question 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." The clause was added to the Constitution in response to the Dred Scott decision, which held that blacks could not be legal citizens.
Critics say the amendment was never intended to apply to illegal immigrants, but others note that when Congress debated the clause in 1868, lawmakers explicitly addressed the question of how it applied to immigrants. This is what Jen Phillips of Mother Jones had to say on the issue:
As one Pennsylvania senator at the time said, "[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese?" A California senator countered the gentleman from Pennsylvania with: "We are entirely ready to accept the provision proposed in this [14th] constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
Historical debates aside, contemporary Republicans also have another difficulty in urging an overhaul of the 14th Amendment: The Republican party's own website, GOP.com, includes the Amendment's ratification among its signal accomplishments in the 1860s.