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Interview: Robert Hardaway on birthright citizenship

Birthright citizenship — the concept that anyone born in the United States is automatically a U.S. citizen — has become a hot topic in politics and the immigration debate, with some lawmakers proposing bills to end automatic citizenship for children of illegal immigrants. Sturm College of Law Professor and constitutional law expert Robert Hardaway discusses the issue and what the Constitution’s 14th Amendment really says about citizenship.


Q: Can you explain the basic idea of birthright citizenship and what proponents of it say?

A: [Proponents of birthright citizenship] claim that a baby born to anyone who steps foot in the U.S. becomes a citizen. They say the Constitution says so, but they fail to note that the 14th Amendment strictly limits birth citizenship to those who are “subject to the jurisdiction” of the U.S. As Sen. Jacob Howard made clear at the time, birth citizenship “will not, of course, include persons born in the United States who are foreigners.” I would submit that children born to tourists, foreign diplomats or military personnel, or passengers in airplanes flying over U.S. airspace, are not U.S. citizens just because they were technically “born” in the U.S.


Q: There has been talk of modifying the Constitution from people on both sides of the argument. Do you think this should happen?
A: If there really are those who want to extend citizenship to those born to tourists visiting the U.S., children of foreign diplomats or military personnel, or to passengers in airplanes flying over the U.S., I think yes, they would need to amend the Constitution to provide for something like that. Personally, I don’t think that would be a very good idea. Certainly no country in Europe would even consider such a law.


Q: What should be done about illegal immigration?

A: First, I would do as President Obama has recommended and vigorously prosecute those companies that hire illegal immigrants and exploit them purely for the sake of profit. Second, I would enforce the immigration laws currently on the books. Third, to all those who voluntarily agree to return to their home countries and file petitions for legal entry, I would offer them a path toward U.S. citizenship on an equal basis as those currently seeking legal residency from their home countries. I also would offer them total amnesty for any past crimes related to forgery of government documents [such as Social Security cards] and tax evasion, along with assurances that their petitions for legal residency would be expedited.


Q: Because you think this is such a common-sense issue, are you surprised that this has become so politicized?

A: I suppose it’s understandable in the current climate in which so many Americans are out of work and looking for work. Ironically, it’s minorities and the hard-working legal immigrants who suffer the most when their wages are lowered by corporations who exploit illegal immigrants by cutting wages for the sake of profits. For example, in the 1970s, large office buildings in Los Angeles hired union workers for jobs that paid high wages with good benefits. Many of them were African-Americans earning a good income. Then the building managers learned that they could do what the robber barons did during the industrial revolution. They hired independent contractors who used illegal immigrants willing to work for a pittance. Thousands of union workers lost their jobs, and wages were severely depressed for the rest.

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