14th Amendment

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Arizona lawmakers and legislators from other states unveiled legislation to end automatic citizenship to the U.S. born children of undocumented immigrants, as granted by the 14th amendment. Arizona State Law Professor Paul Bender and Lydia Guzman, president of Somos America, discuss the amendment and the possibility of changing it.

Jose Cardenas: The 14th amendment of the constitution gives citizenship to almost everyone born in the United States, regardless of the legal status of the parents. This week Arizona representative John Kavanagh and senator Ron Gould joined with legislators from other states in Washington, DC and unveiled legislation to challenge automatic citizenship. Here to talk about the 14th amendment and the legislation is Paul Bender, Arizona state law professor, and Lydia Guzman, president of Somos America. Thank you both for joining us on "Horizonte." Paul, let's start with you. There's been discussion for months about a bill that was going to be coming from the Arizona legislature, a national movement on this, but we didn't see anything until Wednesday. Give us a brief description of what came up.

Paul Bender: What came out on Wednesday, really two things. One is a proposal for a bill that would be passed by the legislatures of a dozen or so states that met in Washington today, and that bill would have the state legislatures passing legislation which would attempt really to redefine a term in the United States Constitution. As you just said, the Constitution says all persons born in the United States, and subject to the jurisdiction thereof, the citizens of the United States and of the state where they reside. What this bill would say is we're going to tell you what subject of the jurisdiction of the United States is, and it tries to define it in a way that's different from the way it's always been defined in the United States.

Jose Cardenas: I want to come back and discuss that. It also has a second page attached to it this, compact.

Paul Bender: Then the second part of it is a proposal that these states, and I suppose any other state who wants to, enter into a compact with each other to give different birth certificates to children who were born here who they don't think are citizens. Even though they're born here. So they would propose that the states, every state that joined the compact would have to agree they would give a second class birth certificate to children born here of parents who were not legally here so that Arizona and these other states don't think their citizens. So the child would go through life with a birth certificate that basically says this is a second class person. That they can't do by themselves because that's a compact between the states. Why they put it that term --

Jose Cardenas: that would require congressional approval.

Paul bender: That would require congressional approval, but the statute which declares basically the statute says it's not only for illegals, the statute would change the law with regard to a child born of people who were legally here, like tourists. If -- as long as they're not -- the only way aliens, people from Germany, Great Britain, France, would -- if this were to pass, the only way their child would be a citizen of the United States is if they were permanent residents. If they were tourists, then the child would not be a citizen. That would also change the law.

Jose Cardenas: And I want to come back to the rationale for doing all that and the problems with it from your perspective, but before we do that, Lydia, there were some rallies in response to the legislation that took on Wednesday.

Lydia Guzman: That's correct. On Wednesday, there were two different press conferences, slash, rallies, and they had different concerns with different messages. The group of coalition of organizations came together to basically say, you know, what's going on? We cannot believe that the Arizona legislature is introducing this type of legislation when we have more urgent pressing priorities in Arizona. Things like the economy, the budget, education. Everybody is losing their homes, and those are the things that the legislature should be focusing on. So that was a focus of one gathering. The other gathering was an organization of different individuals saying, this is an attack on babies, the most vulnerable, these babies were born here, so it's an attack on the defenseless. When you have laws that are being introduced and you're attacking someone who cannot defend themselves, this is un-American, and so those were the two different messages that took place on Wednesday's rallies.

Jose Cardenas: the response from people who are in favor of this kind of legislation will be that if you allow citizenship for the children of undocumented immigrants, you're effectively rewarding the parents for their unlawful conduct.

Lydia Guzman: I've heard that argument, and my response is always, migrants don't come into this country to have babies so they can legalize their status. It's been well researched that when a migrant comes in, they come here to work, they come here to -- for a future, but it's not because they want to come here and have babies with the intent of legalizing their own status.

Jose Cardenas: Paul, talking about intent, the people who support this say that they are actually capturing the original intent of the framers of the 14th amendment, they say here in this proposed legislation that for purposes of the statute subject to the jurisdiction of the United States has the meaning that it has in the 14th amendment, and they go on to say, what that is. Let's talk first of all about how they define it here.

Paul Bender: They would say that the term subject to the jurisdiction of the United States doesn't mean what it says. What it means is born of parents, at least one of whom has allegiance to the United States. That's a different concept of citizenship. The world basically has two concepts of how you get citizenship. One is the one we've always had, and England has it always, you -- also, you get it by being born in a country. You can also get it if your parents are citizens. But you get it by being born. The other concept is no, being born in a country isn't enough. You have to have allegiance to that country in order to be a citizen. They would like to put into the 14th amendment the allegiance definition. That's not the original intent.

Jose Cardenas: They say it is.

Paul Bender: They're wrong about that.

Jose Cardenas: They look at the legislation and say this was intended to deal with slaves following the civil war.

Paul Bender: Well, it's really interesting; because the people doing this are people who say read the constitution. Its plain English, just do it the way it's written. It says all persons born in the United States and subject so the jurisdiction thereof -- if a baby is born here, of two parents who are illegals, is that child subject to the jurisdiction of the United States? Of course he is. If the child grows up and becomes a juvenile delinquent, he'll be arrested for that. If he robs a bank, we'll put him in jail.

Jose Cardenas: What's the point then -- why doesn't it just stop with saying born in the United States?

Paul Bender: Because there are two groups of people, the Supreme Court said when it faced this issue a hundred years ago, there are two groups of people who the Congress said they may be born in the United States, but we don't want them to be citizens. One are the children of diplomats. Diplomats have immunity. They are not subject to the jurisdiction of the United States. We can kick them out, but we can't put them in jail. And the other are interestingly enough, conquering armies. They're not subject to the jurisdiction of the United States. But the purpose was except for those two things, an American -- and American Indians, and the court said that's a completely different situation because Indians are sovereign nations within the United States, it's a complicated subject. So the court in 1898 said, look, what this means is if you're born here you're a citizen, unless your parents are diplomats, unless you're a conquering soldier, or unless you're an American Indian born on a reservation. Otherwise everyone born here -- that's what the Supreme Court said in 1898. So I don't think it's a question -- and in doing that they went through the history painfully, over 20, 30 pages of English, common law history and American history, to say, that's what it means. So they don't want the original intent, they want what they think it should say. So they want to rewrite the 14th amendment.

Jose Cardenas: I want to talk about that Supreme Court decision. Lydia, was there any discussion, or is there a plan to deal with this legislation?

Lydia Guzman: Well, first of all, one of the things that we have to do in the community as voices in the migrant community is maintain a sense of calm. Because I know with our relationship with the migrant community, they are -- we don't want them to be terrified, to pack up and to leave. That's the last thing we want. But at the same time, we are gathering together, we're building a strategy so that we can address it in the legislature at every step, and talk about this issue. But more specifically, to also bring it back to the main discussion of one of the rallies that took place on Wednesday. Why are we focusing on this? When we have other things we should be focusing on? This is an -- un-American. We're changing the constitution.

Jose Cardenas: Are there plans to lobby the legislature to lobby the governor?

Lydia Guzman: Every step of the way we're going to be talking to the legislatures, we're going to have folks sit in committees and testify before committees while at the same time for seen in case it doesn't stop during the different committees, address the next group. But hopefully the governor will -- if it ever reaches her desk, we're hoping the governor will dot right thing and not sign this piece of legislation. It just gives Arizona a black eye.

Jose Cardenas: Paul, going back to that case, it's brought up by the people who oppose this kind of legislation and it's dismissed by the proponents saying, that was just dictum, that wasn't the precise issue before the court. What do you say?

Paul Bender: They're right; it wasn't the precise issue before the court, what it involved was a person of Chinese descent who was born in this country of two parents who are also of Chinese descent living in this country at the time. And they subsequently went back to China and he went to visit them, meanwhile, the United States passed legislation which said no person of Chinese descent can be a citizen, or can even come into the United States. So when he came back from a second trip to visit his parents, he got stopped at the border, and they said, you can't come in, you're not a citizen. He said, yes, I was born here. And the Supreme Court decided he was right. He was born here and therefore he was a citizen. Even though at that time he could not become a citizen by being naturalized, because he was of Chinese descent. It's not exact it will same things but its very lows.

Jose Cardenas: And in the course of reaching that conclusion, they did a rather extensive analysis of the history of the amendment and its purpose.

Paul Bender: And they said what I said before, that it's clear to them that the purpose of this language was to say, everyone born here is a citizen. Unless the summaries and they're not subject to our jurisdiction. We can't tell them what to do. They don't have to obey our laws. And the only people they could put in that category were diplomats or conquering soldiers. Otherwise they say everybody who is born here except for American Indians, which are a separate subject, they said, it means what it says.

Jose Cardena: Lydia, what about the issue, and I think you averted to it, the cost of enforcing this?

Lydia Guzman: This is going to probably end up in litigation if this is passed, and it's signed by the governor. And Arizona really cannot afford another costly lawsuit. We have so much in SB 1070; we have that -- that's going to take years in court. And this -- I believe, this is my opinion, that this -- the way it's written, is intended to -- for legal challenge. And I believe that their in extent for the Supreme Court to make a decision and to redefine the 14th amendment. But this is going to take lots of money; Arizona does not have the money, the resources to get involved in another lawsuit.

Jose Cardenas: Paul, last question, and we're going to have to wrap up this interview. With respect to challenges, the first thing that has to happen with respect to the compact this Congress has to approve, do you think they will?

Paul Bender: I have no idea any more than anybody else does, but it doesn't sound like it's going to easily go through Congress. It's so contrary to American tradition and to the established meaning of the 14th amendment.

Jose Cardenas: And so I take it that if you were asked to predict the outcome of the legal challenge --

Paul Bender: that is different. What they're trying to do is to get the Supreme Court basically to overrule that case ask to say that case was wrong. And I think they hope the current court, or the court five years from now when this case might get there, will do that. That there are people on the court who are in sympathy with their view. I don't think there are five people on the court now who are in sympathy with the view, I would hope there weren't any because it seems -- if you want to change the meaning of the constitution, there's a way to do that. It's to amend the constitution.

Jose Cardenas: Which they had talked about doing. But they haven't taken that route.

Paul bender: That would be an up front, straightforward saying, we think the constitution was in advisedly written. We shouldn't give citizenship that would go through the process. That I can understand. But I don't think this the Supreme Court would even -- even this Supreme Court today would be very happy with people who say, we're going to ignore what you said a hundred years ago, we're going to ignore a hundred years of history, and we're going to let states rewrite the constitution. I don't think -- having said that, you know that last year the Supreme Court ignored a hundred years of history in the area of whether corporations had free speech rights. So it's not impossible for the court to do that.

Jose Cardenas: But not likely.

Paul Bender: My feeling is they wouldn't be likely to do it in this area.

Jose Cardenas: Thank you both for joining us on "Horizonte."

Paul Bender:Law professor, Arizona State University;Lydia Guzman:President, Somos America;

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