SPLC President Richard Cohen urges Congress not to tamper with birthright citizenship

Altering the 14^th Amendment’s promise of citizenship to all children born within the United States would undermine one of our nation’s bedrock principles and risk creating a new population of second-class citizens, Southern Poverty Law Center President Richard Cohen told members of Congress today.

In testimony submitted to the House Subcommittee on Immigration and Border Security, Cohen said the Citizenship Clause of the 14^th Amendment “was intended to put the issue of birthright citizenship beyond the reach of congressional legislation.”

The immigration subcommittee, headed by Republican Rep. Steve King of Iowa, held the hearing to examine whether birthright citizenship should be altered either by legislation or constitutional amendment.

The 14^th Amendment, enacted in the wake of the Civil War, overruled the U.S. Supreme Court’s infamous Dred Scott decision and ensured that former slaves and their descendants were U.S. citizens. Some legal scholars have argued, contrary to Supreme Court rulings, that the amendment was not intended to grant citizenship to everyone born on U.S. soil, in particular the children of undocumented immigrants.

Cohen, however, noted that the intent was never in doubt – that it applied to anyone born within the geographic boundaries of the country. “The congressional debate surrounding the Citizenship Clause makes it absolutely clear that its reach was never intended to be limited solely to those persons previously held in servitude,” Cohen said.

Cohen noted that “there has been tension in our country’s history between the egalitarian principle underlying the Constitution’s birthright citizenship clause and our nation’s immigration policy,” which “all too often, has been animated by distinctions based on race and ethnicity.”

“Today, we are witnessing another backlash to our nation’s changing demographics and are engaged in serious debates about our immigration policy,” Cohen said. “Regardless of one’s position on immigration policy questions, the sanctity of the birthright citizenship clause should not be disturbed.”

Cohen told the story of SPLC client Wendy Ruiz, the daughter of undocumented farmworkers in Florida. Ruiz was born and raised in Florida. But when she applied for college, she was charged out-of-state tuition – more than triple the in-state rate – simply because her parents were undocumented.

In 2012, a federal court recognized the rights of Ruiz and other children of undocumented parents, holding that demanding higher tuition was against “a fundamental principle of American jurisprudence,” that children should not be punished for the actions of their parents. The ruling opened the door to a higher education to thousands of children in Florida. Now, Ruiz has obtained an associate degree and is continuing to pursue her education.

Last Fall, Ruiz spoke at the Dexter Avenue King Memorial Baptist Church in Montgomery, Alabama, the church where Dr. Martin Luther King Jr. and his allies launched the modern civil rights movement.

“Wendy told a deeply American story,” Cohen told lawmakers during his oral testimony. “She talked about the struggles of her farmworker parents; she talked about her determination to get an education; she talked about her dream of becoming a lawyer so she could give back to the community.

“It is simply inconceivable to me that our country would deny the blessings of citizenship to the Wendy Ruizes of the world. Our immigration system may be broken; but we should resist calls to roll back birthright citizenship clause in an effort to fix it. The clause expresses a fundamental principle of our democracy – that there are no second-class citizens; that all persons born in this country, regardless of the status of their parents, are equal citizens under the law.”

Read Cohen's oral testimony below: 

Oral Testimony of SPLC President Richard Cohen before the House Subcommittee on Immigration and Border Security

April 29, 2015

Thank you, Mr. Chairman and members of the committee. It’s an honor to be here today.

Birthright citizenship is a core constitutional value enshrined in the first sentence of the Fourteenth Amendment. With the exception of children of diplomats, members of Indian tribes, and hostile enemy occupiers, the birthright citizenship clause provides that all children born in this country are citizens, entitled to the full blessings of our democracy. The immigration status of their parents is simply irrelevant.  

The view of birthright citizenship that I’ve just expressed is compelled by the plain language of the Fourteenth Amendment, by its legislative history, and by Supreme Court precedent. Those offering a contrary view must bear a heavy burden of persuasion.

The birthright citizenship clause provides 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.” On its face, the clause makes no distinction on the basis of one’s parents’ immigration status. From a commonsensical point of view, children born in this country are “subject to the jurisdiction” of the state. They must obey our laws; they must pay taxes if they earn income; they can be jailed or removed from their homes and placed in foster care.

In the seminal case of Wong Kim Ark, the Supreme Court made it clear that the blessings of birthright citizenship do not turn on the immigration status of one’s parents. As the committee knows, that case concerned the status of someone born in this country to Chinese parents. Under the law at that time, his parents were ineligible for citizenship. The Court pointedly noted that they were “subjects of the emperor of China.” Nevertheless, the Court ruled that Wong Kim was “subject to the jurisdiction” of this country under the Fourteenth Amendment and, therefore, a citizen by virtue of having been born here.  

The legislative history of the Fourteenth Amendment powerfully supports this understanding. During the debate over the proposed Amendment in the Senate, Senator Cowan focused on Gypsies in an effort to persuade his colleagues not to support birthright citizenship. He described Gypsies as pariahs; he said that they were, and this is a quote, “trespassers wherever they go.” [Cong. Globe, 9th Cong. 1st Sess. 2890-91.]

“Trespassers” – that’s about as close as it gets in 1866 to so-called illegal immigrants.

No one in the Senate took issue with Senator Cowan’s stereotypic depiction of Gypsies. No one claimed that they weren’t trespassers. But what other Senators did make clear was that the birthright citizenship clause would confer citizenship on the children of Gypsies. The Supreme Court in Wong Kim Ark took note of this fact.

The Wong Kim Ark Court emphasized that the Fourteenth Amendment’s grant of birthright citizenship is very broad. The Court also emphasized that while Congress may have plenary authority over immigration, including the authority to legislate against those who are unpopular, it is powerless to limit birthright citizenship by ordinary legislation. The only way that can be done is by constitutional amendment. That is the course that those who oppose birthright citizenship must pursue.

Let me use one of our cases to illustrate why I hope that those who want to change the constitution will not be successful.

Recently, we had the privilege of representing a young woman named Wendy Ruiz. Wendy was born in Florida and has lived there all her life.  But the state refused to grant her in-state tuition because she could not prove her parents immigration status. We sued the state and won. In its opinion, the Court, citing Plyler, stated that “obviously no child is responsible for his birth and penalizing the … child is an ineffectual – as well as unjust – way of deterring the parent.”

Last fall, after attending college for two years, Wendy spoke at the Dexter Avenue Baptist Church. That’s the church from which Dr. King and his allies launched the modern civil rights movement. Wendy told a deeply American story. She talked about the struggles of her farmworker parents; she talked about her determination to get an education; she talked about her dream of becoming a lawyer so she could give back to the community. One day, I hope she gets to testify before you. 

It is simply inconceivable to me that our country would deny the blessings of citizenship to the Wendy Ruizes of the world. Our immigration system may be broken; but we should resist calls to roll back the birthright citizenship clause in an effort to fix it. The clause expresses a fundamental principle of our democracy – that there are no second-class citizens; that all persons born in this country, regardless of the status of their parents, are equal citizens under the law. 

Thank you. I look forward to your questions.