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Denogean: Proposal defies courts, citizens, Constitution

The latest proposal on illegal immigration from the rancid far right would be funny were it not so ugly.

A proposed initiative filed last week by Della A. Montgomery of Phoenix for the November 2008 ballot would prohibit the state from issuing birth certificates to babies born to illegal immigrants and would require hospitals to verify the citizenship of the parents. The intent is to deny birthright citizenship by preventing babies born to illegal immigrants from obtaining American birth certificates.

Montgomery, who needs to collect 153,365 signatures by July 3 to get her initiative before voters in November, couldn’t be reached for comment. But Rep. Russell Pearce, a Mesa Republican who has led the charge against illegal immigrants in Arizona, said he plans to try to get a similar measure placed on next year’s ballot by legislative referendum.

The proposal, which is likely to find plenty of support among my fellow Arizonans, is absurd and probably not even legal.

First and most important, Arizona can’t unilaterally decide who qualifies for American citizenship and who doesn’t – not unless Pearce’s next step is to call for secession from the nation.

The 14th Amendment to the Constitution states “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That is currently interpreted to include U.S.-born children of illegal immigrants.

“As long as the federal government recognizes these children as citizens . . . an initiative like this is in conflict with that federal position,” said Andrew Silverman, a University of Arizona law professor who teaches immigration law.

Pearce said he recognizes Congress has the sole power to regulate citizenship but he refuses to stand by and allow others to misuse and misapply the 14th Amendment.

“States have a sovereign right to also uphold the Constitution,” Pearce said, adding that he’s outraged that people can break our laws, enter our nation and have babies who are then citizens.

Outrage aside, how exactly is the 14th Amendment being misapplied? It seems to pretty clearly state that anyone born in the U.S. is a citizen.

Pearce’s argument hinges on the words “and subject to the jurisdiction thereof.” He said illegal immigrants are not subject to the jurisdiction of the United States and, thus, neither are their U.S.-born children, who, therefore, aren’t American citizens.

Pearce said those who originally approved the 14th Amendment did not not intend for it to cover children of illegal immigrants or anyone whose parents have an allegiance to another country. He cited the 1884 Supreme Court ruling on Elk v. Wilkins in support of his position.

Yes, that was a proud moment in American history. The court denied Native Americans birthright citizenship, stating that they didn’t meet the “jurisdiction” test because they owed their allegiance to the sovereign Indian tribes to which they were born. It took three acts of Congress – in 1887, 1901 and 1924 – to confer citizenship upon American Indians.

Pearce’s position also ignores the 1898 Supreme Court ruling in United States v. Wong Kim Ark. Wong was born in San Francisco to Chinese parents. He was denied citizenship because his parents were not citizens or eligible for citizenship.

The Supreme Court decided in Wong’s favor and held that the only American-born children excluded from birthright citizenship under the 14th Amendment and the jurisdiction test are those of foreign parents employed here in a diplomatic or official capacity or children of parents who are members of a foreign force in hostile occupation of the U.S. The court also, unfortunately, excluded Native Americans.

Pearce said he knows this measure, if voted into law, will bring on a lawsuit. He welcomes such a suit and hopes it will reach the Supreme Court.

To my mind, anyone supporting this proposal should admit they are no longer targeting illegal immigrants. They are attacking the rights of babies born on U.S. soil, babies who will have spent their only time on Earth in this country.

American babies.

Anne T. Denogean can be reached at 573-4582 and adenogean@tucsoncitizen.com. Address letters to P.O. Box 26767, Tucson, AZ 85726-6767. Her columns run Tuesdays and Fridays.


Online Poll: Would you vote to prohibit the state from issuing birth certificates to babies born to illegal immigrants?
Yes. How dare people from any country use the U.S. by having a child here in order to gain later access?: 70%
No, it's ridiculous.: 27%
Other: 2%
281 users voted

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