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Birthright Citizenship in AZ and the 14th Amendment

By Jason Beahm on June 17, 2010 | Last updated on March 21, 2019

Arizona, not content to idle after the passage of its controversial immigration law, is pressing on. The state is now considering drafting a new law that would deny "birthright citizenship" to children born in the country to undocumented parents.

A new bill is being considered by Senator Russell Pearce, the architect of SB 1070 which gave Arizona police the ability to question the immigration status of anyone stopped for a valid reason. The new bill would create a law designed to block birthright citizenship and remove the incentive for parents to sneak into the country to have "anchor babies." Under Pearce's proposed law, Arizona would no longer issue birth certificates unless at least one parent can prove legal status.

Republican State Representative John Kavanagh supports the idea: "I think the time is right .... Federal inaction is unacceptable, so the states have to start the process," Kavangh said. 

Many legal scholars believe that Russell Pearce is wrong and the proposed law is blatantly unconstitutional. A state cannot pass a law that directly contradicts a constitutional amendment, as the Constitution has supremacy. A reading of the citizenship clause of the 14th Amendment would certainly lead one to the opinion that anyone born in the U.S. automatically becomes a citizen: "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."

However, some question whether the 14th Amendment guarantees birthright citizenship to anyone born in the U.S. even if their parents are in the country illegally. Though the U.S. Supreme Court has touched on this issue, it has never explicitly ruled on a situation identical to what Arizona is contemplating. 

Statements made during the debate of the 14th Amendment call birthright citizenship into question. Senator Jacob M. Howard of Michigan, author of the Citizenship Clause, stated that citizenship is not conferred upon, "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

However professor of law, John McGinnis, says Senator Pearce is "completely wrong" and that one only needs to look at the "plain meaning" of the 14th Amendment to verify this.

As Michelle Price of the Associated Press reports, citizenship as a birthright is exceedingly rare elsewhere in the world. Many countries require at least one parent to be a citizen or legal resident.

In the coming months, there will certainly be no shortage of debate among legal scholars, politicians and pundits from all sides of the issue. We'll keep you posted as the story evolves.

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