Debates about immigration raise complex and emotional public policy issues. Current immigration policies are not protecting the United States from criminal elements; they are not adequately protecting the worth and dignity of individuals caught in the vicious networks of human trafficking, nor are they satisfying legitimate domestic demand for skilled international workers. This broken system requires sober, realistic and humane reform.
What is not required in these poignant debates, however, is alteration of the U.S. Constitution through amendment.
The birthright citizenship provided by the 14th Amendment of the Constitution derives directly from a venerable common-law tradition that recognizes that every child born within a country's borders is a natural-born citizen. Exceptions to this approach were made for children born to foreign diplomats or detained alien enemies. Birthright citizenship is an Anglo-American tradition that importantly recognizes the rights of individuals within a territorially defined state in contrast to the continental European practice known as the "right of blood" (in Latin: jus sanguinis) — the policy of defining citizenship by ancestry or ethnicity.
While it is true that fewer and fewer countries are practicing the norm of granting automatic citizenship to anyone born within their borders, prudence dictates that we should avoid altering our Constitution in order to address contemporary policy concerns related to birthright citizenship.
The constitutional amendment process has been most successful in addressing perceived defects in the structure of government (e.g., presidential terms or presidential succession) or expanding political participation and rights (e.g., suffrage for women). Of the 17 amendments ratified since the passage of the Bill of Rights, only two legislated public policy — one to impose and then one to repeal prohibition.
Most of the perceived public policy problems associated with birthright citizenship — such as "chain migration" attached to an "anchor baby" — are largely a function of congressional statutes that build upon citizenship rights, not the constitutional provision of birthright citizenship itself.
Our Constitution provides the stable ground rules for how legitimate interests can peacefully hash out challenging public policy issues. Let's not confuse our enduring Constitution with ever-changing public policy. Immigration policy needs deliberation and reform. Let's not, however, change ground rules that have served us well for 142 years by tinkering with the 14th Amendment and the principles it enshrines.