Immigration laws now bring questions about the Fourteenth Amendment to the forefront of debate.

By Micah Hanks

The storm of controversy over the immigration debate, centered primarily on Arizona with its immigration law, S.B. 1070, has brought a number of troubling issues to light in Washington. In response, a variety of colorful solutions have been placed on the table as well, ranging from more simplistic measures aimed at immigration reform, to the more involved process of ammendmending the US Constitution.

Illegal immigration has been treated as an increasing problem in the last several months, as the politicization of the issue has brought many of its intricacies to the forefront of debate. Most recently, a number of questions involving the wording and intention of the Fourteenth Amendment to the US Constitution prevail, originally passed after the Civil War as part of the Reconstructive Period to ensure rights, liberty and freedom to former male slaves and their descendants. The first section of the Amendment says that “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.” Considered today however, with specific regard to illegal immigrants, this is widely interpreted to mean that children born to those residing illegally here in the US are granted these same rights as citizens.

This presents a problem for a few key Senate Republicans, among others, since the equal protections the Fourteenth Amendment provides may even be perceived as an incentive for illegals to have children while residing here. After all, once they give birth to a legal resident, how easily could the parents be deported back to Mexico, when the child resides here legally? Would this call for the circumstantial deportation of a legal resident (and one unable to speak on their own behalf, no less), or perhaps even worse, would it result in separation of the parents from their child? The obvious likelihood would be that the illegal residents with American offspring would be overlooked more readily than others, and hence an incentive lies in procreation, given such circumstances.

So what should be done to prevent this sort of scenario? Jon Kyl of Arizona, as well as Lindsey Graham of South Carolina, have recently questioned whether the amendment should be interpreted so that it grants automatic citizenship to children born within our borders. Subsequently, Senate Minority leader Mitch McConnell advised that the amendment be given a second look, arguing that the loophole presented is something nobody should be comfortable with. Arguments over whether to amend, or even to repeal the amendment have been offered as solutions to an issue with no clear resolution at present.

However inconvenient, there have long been concerns over whether the amendment would allow such an immigration loophole. In the nineteenth century, some expressed notions similar to the concerns of today, in that fears existed about Chinese immigrants who may seek to move to California, populating its borders with legally-born children. In spite of this, the wording of the document clearly states that “All persons born or naturalized in the United States” are citizens, not persons who qualify only under certain circumstances. To this, some argue that the amendment referred specifically to male former slaves, since references to emancipation are made in section four of the amendment. However, “all persons,” again, seems to make a rather bold affront to this interpretation; hence, those who oppose it now would like it changed.

So should the Constitution of the United States be altered or modified, especially when the partisan nature of this argument clearly illustrates political motives? This has happened before in the recent past: in January of 2010, with the Supreme Court’s ruling on Citizens United v. FEC, some progressive democrats argued similarly for an amendment to the Constitution that would prevent corporations from influencing elections. Again, though the intent here may be of merit, is this a wise course of action during a time where heated conflict and political divide would obviously influence the situation? History shows us that in the past when a decision was rushed through, for instance, pertaining to the Volstead Act, without proper consideration, the resulting amendment established Prohibition of alcohol sales in the US. Within two decades, the obvious problems resulting from an attempt at legislating social behavior became evident, and the Twenty-first Amendment was passed to repeal the Prohibition laws enacted under the failed Eighteenth Amendment. Similar circumstances could await us in the future, if not approached with caution.

It is hard to argue that illegal immigration presents problems for the US, as do certain potentials involving the influences corporations may have on elections. Although these arguments, along with other existing constitutional concerns, have their individual merit, perhaps the best course of action for now is to deal with these issues by stepping back, slowing down and thinking carefully, rather than escalating a situation which may contribute to even greater partisan divide in the future.

Image by Fibonacci Blue via Flickr.