Lofgren statement on Republican hearing on ending birthright citizenship

April 29, 2015
Press Release

WASHINGTON, D.C. – U.S. Rep. Zoe Lofgren (D-Calif.), the top Democrat on the House Judiciary Subcommittee on Immigration and Border Security, lamented today's Judiciary subcommittee hearing on birthright citizenship as a fruitless and politically motivated effort to revisit an ugly chapter in our Nation's history.

"Is the purpose of this hearing really to consider whether the Citizenship Clause of the 14th Amendment – adopted in the aftermath of the Civil War – outlived its usefulness? Can we expect the full Committee to soon take up the question of whether the Equal Protection Clause guarantees too much equity?"

Lofgren added that in considering whether birthright citizenship is the right policy for America, "I think the answer is clearly yes, and that in fact no other policy would be worthy of this country."

Lofgren's full statement as delivered is below:

"Earlier this month, the House Committee on Science, Space and Technology – where I also serve – held a hearing to cast doubt on global warming science.  Nevermind the overwhelming consensus in the scientific community that humans are contributing to climate change.  Nevermind the evidence that rapidly increasing greenhouse gas emissions are disrupting life all over the world.  Rather than working to develop and support innovative methods of combatting climate change, the Science Committee held another hearing to debate whether established science is real.

"I can't help but think that today's hearing is a similarly fruitless effort.

"The question that we are asked to consider is whether birthright citizenship is the right policy for America.  I think the answer is clearly yes, and that in fact no other policy would be worthy of this country.

"The origins of birthright citizenship long pre-date the Fourteenth Amendment.  Supreme Court Justice Joseph Story said early on that "[n]othing is better settled at common law than the doctrine" of jus soli, or citizenship by place of birth.

"The Supreme Court once diverged from this principle in the infamous Dred Scott decision when it denied birthright citizenship to the descendants of slaves.  The violent institution of slavery itself was clearly an incredible injustice.  In Dred Scott, the Supreme Court found a way to continue that injustice—to reinforce the caste system at the heart of slavery—even with respect to children born in this country to freed slaves.

"There is no question that the Fourteenth Amendment was adopted—and the Citizenship Clause was included as the very first sentence of that Amendment—to repudiate Dred Scott and to help us turn the corner on an ugly chapter in our Nation's history.  But the Clause did not simply say, as it could have, that children born in this country to freed slaves are citizens of this country.  Rather, the Framers of the 14th Amendment spoke in general terms, guaranteeing 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."

"From the debate in Congress at the time it is clear that they understood this language to have much broader reach.  It is also clear that Members were motivated to embed this language in the Constitution precisely because a constitutional right of citizenship would be protected from the caprice of Congress and the prejudices of the day.

"Thirty years after the 14th Amendment was ratified, the Supreme Court had occasion to consider whether a child born in this country to Chinese immigrants who were, by law, prohibited from naturalizing was entitled to birthright citizenship.  The Supreme Court answered that question in the affirmative with sweeping language that is worth quoting.  The Court held:

"The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.  United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898).

"A minority view among legal scholars holds that Wong Kim Ark speaks only to children of legally present immigrants.  The language in the case certainly does not suggest that additional exceptions or qualifications to the fundamental rule of birthright citizenship would apply to children of undocumented immigrants born in this country. 

"But even if that were true, the Supreme Court in the 1982 case of Plyler v. Doe settled the question.  In Plyler, the Court explained that the phrase "subject to the jurisdiction [of the United States]" in the Citizenship Clause applies as comprehensively as the phrase "within its jurisdiction" in the Equal Protection Clause.  And "no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."  Plyler v. Doe, 457 U.S. 202, 211 n. 10 (1982).

"So if there really isn't a serious debate among scholars about what the Clause means is the purpose of this hearing really to consider whether the Citizenship Clause of the 14th Amendment—adopted in the aftermath of the Civil War—has outlived its usefulness?  Can we expect the full Committee to soon take up the question of whether Equal Protection Clause guarantees too much equality?

"Preparing for this hearing, I thought about Republican Party's history as the "Party of Lincoln."  On the GOP's own website there is a history of the party that proudly marks January 13, 1866, as the day that the 14th Amendment was passed by Congress "[w]ith unanimous Republican support and against intense Democratic opposition."  And yet the question we are asked to consider today is whether the passage of the 14th Amendment and the Citizenship Clause almost 150 years ago was good policy for America. 

"It is no wonder that when this issue last flared up in 2010 and congressional Republicans voiced their support for legislation and constitutional amendments to restrict birthright citizenship, prominent Republicans like Mark McKinnon cautioned that "The 14th Amendment is a great legacy of the Republican party.  It is a shame and an embarrassment that the GOP now wants to amend it for starkly political reasons."

"Republican leaders in the Senate narrowly avoided a debate on this topic just last week when they prevented Senator Vitter from offering a birthright citizenship amendment to a bill on human trafficking.  I cannot imagine that Republican leaders in the House are any more interested in bringing this issue to the Floor.  Actually, it has been 10 years since this Subcommittee last held a hearing on this topic and I note that one of our witnesses—Professor Eastman—testified before us at that time.  Hopefully all of that means that this will be the last we hear of the issue for quite some time."

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