An Odd Turn of Events

For well over a generation many conservatives have insisted on a strict interpretation of the Constitution. They have decried Roe v. Wade and the laborious stretching of the Constitution that led to it. They have protested against what they see as the abridgement of Second Amendment right to keep and bear arms. In the case of gun rights, conservatives argue that the Second Amendment is unambiguous. The amendment states that the "right of the people to keep and bear arms shall not be abridged." Only casuistry of the highest order has been able to find that the "right of the people to keep and bear arms" means no such thing.

Virtually every time the Court has read the Constitution broadly or interpreted it in a novel way, conservatives have howled. Yet, in a peculiar twist, some conservatives are abandoning their customary insistence on history, text, and intent in favor of an expansive, i.e. liberal approach.

A group of Republican state representatives from across the country is proposing legislation that would allow states to restrict state citizenship to legal residents and U.S. born people who meet certain criteria. One criterion proposed is as that a child born in the U.S. would need at least one parent without "allegiance to a foreign country" to be considered a citizen: a criterion with extensive ramifications for those who hold duel citizenship. They are seeking a new, broad interpretation of the Fourteenth Amendment in hopes of stemming the rising flood of illegal immigrants. And they need a broad one indeed.

The Fourteenth Amendment states 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." It goes on to say that no state may abridge the rights bestowed by citizenship. There is nothing ambiguous there. All persons born in the United States are citizens of the United States. All persons born in a state are citizens of that state. The Amendment says nothing about the status of parents. It is clear that the Founders made no distinction between legal and illegal residents. When the Constitution was written there was no such thing as an illegal resident.

Despite that, a move is underway by many conservatives to stretch the Constitution and move beyond what is written the text. They are insisting that, despite what is written in the Constitution, state citizenship be granted only where people meet the state's definition of citizenship. The only wiggle room provided in the Fourteenth Amendment is the requirement that those born be subject to the jurisdiction of the United States and that they reside in the state where they are born. That is not very much room at all. They might be able to snare border babies and those who are merely passing through but anyone who has stopped and pitched tent and has a child has given birth to a citizen.

Another proposal being put forward would ask states to provide birth certificates to distinguish between those born to legal immigrants from those born to illegal immigrants. The U.S. Constitution makes no such distinction. Every one born in the U.S. is a citizen of the U.S. Every person born in a state is a citizen of that state. Proposing as they are that states are allowed bestow citizenship only on those born to to immigrants in the country legally is as liberal an interpretation of the Constitution as any that has ever been made.

Text and tradition are against them. Nevertheless the movement is gaining steam. It is now conservatives that are insisting on a broad interpretation of the Constitution and ignoring the written word and original intent. They are the ones now engaging in constitutional gymnastics. It is indeed an odd turn of events.

If conservatives want to stem the tide of illegal immigration they should find another way than abusing the Constitution.