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On immigration, Lindsey Graham abandons principle

It is stunning -- just stunning -- that Sen. Lindsey Graham (R-S.C.) has apparently joined the movement to revoke birthright citizenship. "People come here to have babies," he says. "They come here to drop a child. It’s called 'drop and leave.' "

After years of being a lonely voice of Republican sanity on immigration, Graham has decided to embrace the supreme symbol of nativism -- changing the Fourteenth Amendment to restrict American citizenship. He has either taken leave of his senses or of his principles. Neither is unknown in Washington. Politicians sometimes come here to drop their deepest convictions. It’s called self-serving cynicism.

The authors of the Fourteenth Amendment guaranteed citizenship to all people “born or naturalized in the United States” for a reason. They wished to directly repudiate the Dred Scott decision, which said that citizenship could be granted or denied by political caprice. They purposely chose an objective standard of citizenship -- birth -- that was not subject to politics. Reconstruction leaders established a firm, sound principle: To be an American citizen, you don’t have to please a majority, you just have to be born here.

Abandoning this principle would be particularly cruel when it comes to the children of illegal immigrants.

Anti-immigration activists often claim that their real concern is to prevent law breaking, not to exclude Hispanics. But revoking birthright citizenship would turn hundreds of thousands of infants into "criminals" -- arriving, not across a border, but crying in a hospital. A whole class of people would grow up knowing they are hunted aliens, through no fault of their own. This cannot be called the rule of law. It would be viciousness and prejudice on a grand scale.

Can this really be what Graham intends? Does he actually think that Congress and three-fifths three-fourths of state legislatures will undertake a multiyear effort to feed racial conflict in America? No, Graham is merely trying to please his political critics in one sweeping act of surrender.

Graham and Sen. John McCain (R-Ariz.) were once examples of conscience on the issue of immigration. McCain, in a tough Senate primary, has backed off his convictions. Graham has now abandoned them. Their political fortunes may recover. Their reputations may never fully recover.

By Michael Gerson  | July 30, 2010; 12:14 PM ET
Categories:  Gerson  | Tags:  Michael Gerson  
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We may well not need a constitutional amendment to end birth right citizenship.There is an 1884 Supreme Court decision Elk v Wilkins that may well provide the foundation for ending birth right citizenship. It may well be that in giving citizenship to people born in this country to illegal immigrants we have been misapplying the law. Before anyone jumps down my throat I urge them to actually read the decision and I am not definitely saying that this decision will end birth right citizenship, all I am saying is that this issue is not as clear cut as many people want us to believe.

Posted by: jeffreed | July 30, 2010 1:35 PM | Report abuse

ILLEGAL immigrants have broken the law! How can their babies be US citizens? The amendment had to do with slavery - not ILLEGAL IMMIGRANTS!! Senator Graham is right that a change in the law is necessary. Why do we need to support everyone in the world? Let them make their country a good place to live. Soon ours will be just like theirs if Obama and his co-horts get their way. Because of Obama and his ilk we are sinking faster every day.

Posted by: annnort | July 30, 2010 1:36 PM | Report abuse

Nativism--puleeze! What is ridiculous is that illegals can come here, have a baby that is automatically considered a US citizen (anchor) and then parlay that into a lifetime of bilking our services for as much as they can get. Then, when they are caught, they want sympathy because they have a US citizen in the family that they'll be separated from if deported. Don't tell me that other countries do this, they don't. This automatic citizenship needs to end, those who are deported need to take their children with them (as any child would be required to remain with the parent until the age of majority). Then, if this child wants to assert its US citizenship, we'll take a look at criminal record, etc., and decide if they should be allowed to stay. Stop making these idiotic arguments on behalf of deserters who've left their own country rather than staying and try to affect positive change. True Americans don't leave our country when we don't like something, we stay, we fight, we debate, we vote, and we affect change. These people don't care about citizenship. Some have been here for years and never tried to do it legally. They care about what they can get from our entitlement programs, nothing more, at legal taxpayer expense.

Posted by: 78vette | July 30, 2010 1:48 PM | Report abuse

Elk vs. Wilkins has to do with Indian Reservations, and it really doesn't apply in this issue. It would be a quite a stretch, even with our current conservative Supreme Court, to apply this in an attempt to overturn the 14th Amendment.

Posted by: LouisianaDoug | July 30, 2010 1:56 PM | Report abuse

Illegals come here to work, to work the jobs Americans think we're above- they work in the fields, on construction sites, in slaughterhouses, chickpen plants, factory farms. And they do it all better and for less money than Americans are willing to do it, even accounting for taxes. All of a sudden, we're angry that they're even here?! This is nativism and racism masquerading as respect for rule of law. It's disgraceful. And labelling newborn infants "illegals" is particularly abhorrant. Anyone who comes down on Graham's side for this is a person of exceptionally low moral character.

Posted by: LouisianaDoug | July 30, 2010 2:01 PM | Report abuse

Mr. Gerson, you sound like a subversive to me. You use insults like "nativist" to argue that we should not make citizenship a valued privilege by those who support our country. MOST of us are descended from immigrants from all over the world. What we don't want is people to use the "anchor baby" technique to invade our country, and change our language and values, which they are doing now. If Cesar Chavez or other hostile individuals have a baby here, do you want those children to be citizens? I think not. The 14th amendment was intended to address former slaves. Congress of that era is probably rolling in its collective grave at how that amendment is being used. Get rid of it, by statute or outright repeal!

Posted by: sceptic1 | July 30, 2010 2:21 PM | Report abuse

oops -- sorry -- CORRECTION to my recent post -- mistake by word association -- I meant HUGO Chavez, from Venezuela, not "Cesar" Chavez. Caught up in the passion of my post. My mistake.

Posted by: sceptic1 | July 30, 2010 2:23 PM | Report abuse

We have probably about twelve million illegal immmigrants in this county because we welcomed them. If immigrants could not have found work here, they would not have come. Some companies even recruited illegals to drive out the union meat cutters.
There is no way to remove twelve million people without the use of concentration camps and thousands of guards and the large expense of catching and transporting them.
However, in a few more years, Latin voting power will be strong enough to overpower the current hatred and politicos will all change their tune.

Posted by: cperrym | July 30, 2010 2:29 PM | Report abuse

However, in a few more years, Latin voting power will be strong enough to overpower the current hatred and politicos will all change their tune.
Which will be a very great thing indeed, because "Latins" have such a great track record of creating stable, prosperous, peaceful, non-corrupt, First World societies like Mexico, Colombia, and Venezuala.

Posted by: MaryJessel | July 30, 2010 2:44 PM | Report abuse

Two of my hopes for the Republican Party rested on John McCain and Lindsey Graham. I admired McCain for his bravery and patriotism. His moniker, the "Maverick", was apropos and helped define true Americanism - a spirit based on principles.
Lindsey, I often thought of as the most intelligent Republican of our times. If the GOP had a chance to shed its "greedy, opportunistic" characteristic, and truly return to a party that represents the individual rights of Americans - as opposed to the coded states rights, and corporate interests, I felt Lindsey could do it.
When a nation gives corporations the same rights as individual citizens, we have a confused nation.
Do corporations have freedom of speech, religion, or vote? Do they have the right to contribute to political campaigns? Do they have babies?
I was sure Lindsey could have cut through all this confusion and would have landed on the side of human beings. Now, he's against babies.
Lindsey, let me tell you something about Mexicans and their children.

Juan de la Barrera, Juan Escutia, Francisco Márquez, Agustín Melgar, Fernando Montes de Oca, and Vicente Suárez are the Hero Children every Mexican carries in their heart. There a monuments in every major city in Mexico, and streets named after them. They all died at the hands of U.S. Military forces in Chapultepec. The last one to die, wrapped his flag around him and dove off the wall to prevent its capture.
So when you go after our babies - remember - you are touching a very raw nerve that can produce what Tea Party spokespersons have referred too as Amendment 2 solutions.

Brazilian president Luiz Inácio Lula da Silva at the Heroic Cadets Memorial in Chapultepec Park, Mexico City. The monument was designed by architect Enrique Aragón and sculpted by Ernesto Tamaríz at the entrance to Chapultepec Park in 1952.[2]
They resisted the invaders until most of them were killed, with accounts maintaining that the last survivor leapt from Chapultepec Castle wrapped in the Mexican flag to prevent it from being taken by the enemy.
The cadets are honored by an imposing monument made of Carrara marble by architect Enrique Aragón and sculptor Ernesto Tamaríz at the entrance to Chapultepec Park (1952);[2] and the name Niños Héroes, along with the cadets' individual names, are commonly given to streets, squares and schools across the country. For many years they appeared on the MXP 5000 banknote. Mexico City Metro station Metro Niños Héroes is also named after them.

Posted by: TelesforoSanAnto | July 30, 2010 3:04 PM | Report abuse

Mr. are an idiot. The authors absolutely intended birth to be the sole determinant of citizenship when they drafted the 14th Amendment. What they did not, COULD not have expected would be that millions of people would illegally enter this country and have babies for the purpose of attaching non citizen family members to the umbilical cord. They also could never have fathomed a time when illegals by the millions would enter this country with no money, no job, no home and expect those of us who pay taxes to fund all these essentials for them. There was no such thing as welfare, indigent healthcare and subsidized housing. The authors simply could never have predicted that our nation would become so ignorant as to require free services be provided to people who are breaking the law by being here. And given the absolute sacrifices our founding fathers made, to suggest that people here illegally could somehow demand money and goods for free that hard working legal Americans had to provide with no recourse or be labled racist is simply shameful.

Most civilized nations in the world have mandated that citizenship be granted only when at least one parent is a legal citizen of the country. You act as though this is an unheard of move. It isn't. Of major countries only the U.S., Canada and Mexico currently feature birthright citizenship. Of the three, only the U.S. foolishly opens the bank vault for anchor babies. Ending birthright citizenship is a step whose time has come to remove the attraction to illegal aliens.

Posted by: lowmoralcharacter | July 30, 2010 3:34 PM | Report abuse

Let's say a pregnant woman is overflying the U. S. from Canada to Mexico, and, prematurely and unexpectedly delivers her child over Kentucky air space -- should that child be considered a U. S. citizen? Of course not.

Why should children of alliens, legal or illegal, have automatic citizenship in this country by accident of their birth. It would seem the best practice would be to have the children of aliens go through the same naturalization process that there parents have to go through.

It is absurd that a child born to people that shouldn't be on U. S. soil in the first place should be considered a U. S. citizen. If indeed that is what the Constitution means, then it should be changed by the ammendment process contained in the Constitution.

cperrym wrote: "We have probably about twelve million illegal immmigrants in this county because we welcomed them. If immigrants could not have found work here, they would not have come." First of all, who are "we?" "We," meaning the citizens of the United States acting through our representative government did not invite or welcome them. In fact "we" prohibit them from being on U. S. soil in the first place.

Second, their employers have no right or authority to act for "we" and welcome them. In fact, those employers are violating the "our" law by employing them.

cperrym further wrote: "There is no way to remove twelve million people without the use of concentration camps and thousands of guards and the large expense of catching and transporting them."

I disagree. In Arizona thousands of illegal aliens have already started to move out of the state. If the Arizona law would be applied nationwide, I think millions of illegal aliens would return to their homeland on their own, which is what they should be doing now, with or without the Arizona law. The object of the law is not to jail illegal aliens, but get them to either not violate the law by illegally crossing the border, or, if they are already here illegally, to get them to leave. We have no interest in jailing them. Ideally an illegal alien would be enroute home the same day his illegal status is discovered.

It is not the child's fault that he is born of people who shouldn't be here in the first place. But is is not the fault of "we" that his parents violated that law. It is the responsibility of the child's parents to care for him and that will involve taking the child home to their native homeland, where they are legal citizens or legal residents.

Posted by: herlick | July 30, 2010 3:41 PM | Report abuse

LouisianaDoug correctly noted that Elk v Wilkins had to do with native Americans, but he failed to note that more particularly it dealt with birthright citizenship. He also failed to note that the Supreme Court has never specifically ruled on the question of whether or not birth right citizenship applied to the children of illegal immigrants. I know it is commonly believed that it does, but this does not alter the fact that the court has never specifically ruled on it. If I had several hundred or more pages, I could put together sound argument that would support the notion that birth right citizenship does not apply to illegal aliens. Whether or not the court would accept my arguments in of course unknown. On the whole question of would it be a stretch to us Elk v Wilkins and some other cases to conclude that birth right citizenship does not apply to illegal aliens. My answer is maybe. The court of interstate commerce, privacy, and a whole host of other matters has seen in proper to stretch the constitution one way or another and who knows in fact what they might do in this case. My point in all of this is quite quite simple: anyone who thinks that the question of birth right citizenship is settled law needs to think again.

Posted by: jeffreed | July 30, 2010 4:02 PM | Report abuse

Mr. Gerson the actual text reads
“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.”

Leaving out the key part of “subject to the jurisdiction thereof” nullifies any attempt at reasoned debate.

The two points of Section 1 of the 14th amendment and the US Congress are the sole arbitrators of “Citizenship” and that the Rights and responsibilities of said Citizenship shall be enforced across the States equally nor shall any State abridge those Rights and responsibilities.

Over the years there have been numerous Supreme Court rulings, which addressed the second point of “Equal Protection” for Citizens, but none have addressed if they are in fact “Citizens” in light of “subject to the jurisdiction thereof” the closest ruling would be the previously commented on Elk V. Wilkins which while in the context of an American Indian makes a direct statement on the “subject to the jurisdiction thereof” portion of the amendment.
“This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared
Page 112 U. S. 102
to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
While rendered moot by subsequent Indian treaties this ruling and its definition of “subject to the jurisdiction thereof” have never been challenged much less overturned.
There are many questions unanswered in “subject to the jurisdiction thereof” and they need to be resolved.

Posted by: notthatdum | July 30, 2010 4:45 PM | Report abuse

I wonder when the Native Americans looked at each other and said exactly the same thing. Our ancestors took over this continent, invading the Indian nations, French territories, and Mexico to do so, and now we're making laws about who can come here "legally"? It takes a long-term outlook, but this is just the sweep of history,and history may sweep away "our language and values," just as it swept away those of the first Americans.

Posted by: loco71 | July 30, 2010 5:49 PM | Report abuse

You pay this man to write op-ed columns for you-- and the taxpayers were formerly forced to pay him a six-figure salary to write speeches for a semi-literate president-- and neither he nor your responsible editor knows that the Constitution (in Article V) requires that amendments that are submitted to the states' legislatures require three fourths (75%) rather than three fifths (60%) approval to be ratified as part of the Constitution?

Posted by: DKHand | July 30, 2010 5:55 PM | Report abuse

Why don't you read off the rest of Section 1 of the 14th Amendment, Michael?

You say:

"The authors of the Fourteenth Amendment guaranteed citizenship to all people “born or naturalized in the United States”"

However, Section 1 of the 14th Amendment plainly states:

"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."

Unless an individual meets BOTH (that's what the word 'AND' is for) conditions specified in the conjunctive clause contained in Section 1 of the 14th Amendment, then that person does not qualify for automatic (birthright) citizenship.

Being "born or naturalized" in the United States is only half the battle; additionally, if you aren't "subject to the jurisdiction thereof" as well, then you don't qualify for automatic citizenship.

Posted by: kamakiri001 | July 30, 2010 11:02 PM | Report abuse

All those claiming that illegal immigrants or their children aren't covered by the "subject to the jurisdiction thereof" clause: If they aren't subject to the jurisdiction of the US, that means that they aren't subject to US law. In that case, how are we going to deport them legally?

I'll wait for your answers...

Posted by: DavidSeibert | July 31, 2010 1:15 PM | Report abuse

Amazing, nothing is sacred to the nativists in America. I wonder how my native American friends feel about this. Thank God they weren't able to implement such a merciless ploy which would have made everyone of us illegals.

Posted by: wfelizali | August 1, 2010 10:29 AM | Report abuse

What change is Senator Graham suggesting? What if it were to grant US citizenship to anyone born of a parent (or both parents) who is (are) US citizens? All other people desiring to become US citizens would have to go through a naturalization process and Congress can define what that is by law.

Posted by: ReaderEd | August 1, 2010 12:02 PM | Report abuse

GERSON, acting as usual as one of The Post's attack ninnies, has it in for Graham because Republican Lindsey is a bipartisan voice of reason in our worthless Senate.

Graham lofted this trial balloon mainly to see which of his "colleagues" would support or reject it.

The law, however, as written, is correct and just.

Posted by: perryneheum | August 1, 2010 1:33 PM | Report abuse

"However, in a few more years, Latin voting power will be strong enough to overpower the current hatred and politicos will all change their tune."

At least you correctly identified the issue. The proponents of amnesty (or "letting illegal aliens stay" if, like those proponents, you shy away from the correct term) are not acting out of compassion, they just want to make the illegal aliens citizens and register them as Democrats. I don't expect politicians never to consider the interests of their party, but I do expect them never to put their party's interests before those of the country, and I’m not even saying there’s no argument that amnesty would be good for the country. I’m saying its proponents don’t get so far as to consider the question. They think of their party’s interest first, last, and only.

Mr. Gerson considers that denying citizenship to the children of illegal aliens would be "viciousness and prejudice on a grand scale." He needs to calm down. I'm no expert, but isn't the US practice of granting citizenship to anyone born within it the international exception rather than the standard? Don’t many countries deny citizenship even to the children of aliens in the country legally? I doubt the child born to a Swiss woman on vacation in Acapulco is automatically a Mexican citizen, and I certainly don’t think Mexico is morally obligated to make him/her one. If the children of legal aliens can be denied citizenship without viciousness or prejudice, then so can the children of illegal aliens.

Posted by: keithsmd | August 1, 2010 5:20 PM | Report abuse


Posted by: jackwbarnes1 | August 2, 2010 9:24 AM | Report abuse

I am very disappointed in this column by Michael Gerson, with whom I usually agree. I simply don't understand where this is coming from, aside from his normally commendable "compassionate conservative" disposition.

The United States is virtually the only country in the world who automatically grants citizenship on the basis of birth inside our borders. Most countries, reasonably enough, tie a child's citizenship to the parents'. My children don’t become little German citizens if my wife were to deliver while we are on vacation in Munich.

I observed in a recent Post a photo of children at some anti-Arizona rally wearing T-shirts saying "Don't Deport my Mom" or something like that. This has become a bit of a catch 22 argument for pro-amnesty folks: that it is "uncompassionate" to send those illegally present in the US if they have managed to have a child while, again, living here illegally. And it is similarly "uncompassionate" to deny people who are here illegally the right to create this "anchor baby" due to a fundamental misreading of the 14th Amendment. If those kids wearing those T-shirts weren't being considered US citizens, they would have no more right to stay here than their unlawfully present parents. The whole argument against "splitting families" is hooey, since there would be no rationale for doing so if the children weren't claiming some dubious right to remain (the common-sense response, of course, is that no family would be "split" if the children went home with their parents, as they logically should).

Posted by: airish1 | August 2, 2010 4:43 PM | Report abuse

sceptic 1: racist @zzh@le!!!!

Posted by: rastaman48 | August 3, 2010 7:08 PM | Report abuse

I am interested in all these arguments stating that the 14th amendment does not, nor did it seem to apply back in the late 19th century to what we are facing now with regards to illegal immigrants having children. Unfortunately, it did. United States v. Wong Kim Ark (1898) pretty much decided without question that if a child is born in the US, it is an American citizen. The example of someone on vacation does not apply, since they do not "live" here, legally or illegally. This is a false construct. I hope this answers the question for everyone who didn't take AP Government classes.

Posted by: DanceRat | August 3, 2010 8:26 PM | Report abuse

It is absolutely astonishing that so many people have vilified Michael Gerson in the comments. There seems to be tremendous hatred on this subject.

Let's say we take away the 14th amendment, should we apply it retroactively? If not, why not? After all, why an arbitrary line in the sand? Why condone some children of illegals and not others? Is it merely the color of their skin?

If we do consider applying the repeal ab initio, then how many Americans can prove that their ancestors came here legally enough to be considered legal themselves? Should we then deprive all US citizens of their citizenship unless the can prove that their entire family tree was legally here? How long should we go back?

The trouble with all this finger pointing is that people forget that so many of the people pointing fingers are themselves descended from people who were here on questionable credentials.

Posted by: autish2 | August 3, 2010 11:43 PM | Report abuse

lots of hatred here for people just trying to better their lives. hatred and contempt. sickening. those who act and speak in this way are neither christians nor americans.

Posted by: frieda406 | August 4, 2010 2:08 AM | Report abuse

It's fascinating how many people cite Elk vs. Wilkins (1884) but not Wong Kim Ark (1898); it's as if they're just regurgitating the tripe they've been been fed, without apparently knowing that the Wong Kim Ark decision points has its own extended discussion on "jurisdiction" (separate from Native American sovereignty) that has served as precedent for the past century.

Posted by: pseudonymousinnc | August 4, 2010 2:16 AM | Report abuse

If such a change to the constitution ever passes, they should make it retroactive at least 8 generations. So, if your family came here in 19th or 20th centuries, and they did so under false pretenses, with fake names, or otherwise illegally, get your stuff ready, because you will no longer be a US citizen and will be deported "wherever you came from".

Posted by: rmendoza13 | August 4, 2010 9:16 AM | Report abuse

I would like someone to explore the cross-over between the 'the framers of the 2nd Amendment knew exactly what they were doing' with the 'the framers of the 14th amendment were idiots' crowd.

Posted by: ianw2 | August 4, 2010 10:27 AM | Report abuse

Then we should all have to trace our ancestry, and if your parent immigrated here illegally or before any of your family became citizens, then you would also then be an illegal.

Posted by: dcmg | August 5, 2010 1:12 PM | Report abuse

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