14th Amendment is key to the American experiment

[Derechos]

Editor's note: Cristina Rodríguez is professor of law at the NYU School of Law. She is the co-author of Immigration and Refugee Law & Policy (with Stephen Legomsky) and is currently at work on a series of papers on state and local participation in immigration regulation. Rodríguez served as a law clerk to Justice Sandra Day O'Connor of the U.S. Supreme Court and to Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit.

(CNN) -- The latest constitutional amendment being floated by some Senate Republicans -- to deny citizenship to children born in the United States to unauthorized immigrants -- is not new.

Calls for modification of the 14th Amendment's birthright citizenship guarantee have appeared during other moments of immigration-related hand-wringing. The question is whether the idea is a good one.

And the reform is not unthinkable from a democratic point of view. In fact, the United States and Canada stand apart from other major immigrant-receiving societies in the breadth of birthright rules. The United Kingdom amended its laws in 1981 to provide that only children born to citizens, or permanent residents born in the U.K., are citizens at birth.

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But if ever there were a case for maintaining American exceptionalism, the 14th Amendment is it. Rejection of universal birthright citizenship would upend practices vital to the success of the American venture.

The proposed amendment's implicit premise, that children of parents who have broken the law do not deserve U.S. citizenship, contradicts a basic American value: the sins of the parents should not be visited upon the children.

Justice Robert Jackson put it succinctly in dissent from the Korematsu decision (1944), which found Japanese internment policies during World War II constitutional: "If any fundamental assumption underlies our system, it is that guilt is personal and not inheritable."

Justice Harry Blackmun reasoned similarly in Plyler v. Doe (1982) when striking down a Texas law that would have denied unauthorized children access to public schools. Frustration with illegal immigration, he wrote, ought not lead to unequal treatment of children who had no hand in creating their "illegality."

U.S. courts and most legal scholars have consistently interpreted the Citizenship Clause to apply universally, save to the children of diplomats, invading armies and Native Americans (though the Supreme Court has never directly addressed the status of children born to unauthorized immigrants).

The clause thus operates as a constitutional reset button. Each generation born in the U.S. stands on its own, with equal citizenship status, regardless of parentage. Given our history as a society of immigrants, this rule has been crucial to our development into a cohesive political community and to our ability to integrate each new immigrant cohort.

It ensures that those who are born and raised in the United States have an equal opportunity to participate and contribute and are regarded by others as full Americans.

http://edition.cnn.com/2010/OPINION/08/17/rodriguez.14th.amendment/#fbid=zTHN-xfbJ5A&wom=false