ONE INITIATIVE THAT’S UNCONSTITUTIONAL FROM THE GET-GO

CALIFORNIA FOCUS
FOR RELEASE: FRIDAY, OCTOBER 9, 2009, OR THEREAFTER

BY THOMAS D. ELIAS
“ONE INITIATIVE THAT’S UNCONSTITUTIONAL FROM THE GET-GO”

How desperate are some opponents of illegal immigration to get their case before the public (as if it weren’t already a top issue)? Desperate enough to put forward a possible ballot initiative that absolutely everyone involved knows would be held unconstitutional the moment it passes.

There are plenty of other questionably constitutional measures now in circulation, hoping for a place on the ballot next year. These include one requiring possession of government-issued identification in order to vote and another that would assess a one-time 55 percent tax on all individual wealth that exceeds $15 million for an individual or $20 million for a married couple.

But no other current proposal is as baldly contrary to the Constitution as the anti-illegal immigrant measure that’s the brainchild of Bill Morrow, a termed out former Republican state senator from Oceanside and two other anti-illegal immigration activists.

Their aim: Preventing children of undocumented immigrants from becoming United States citizens even when they’re born here.

This, of course, runs counter to the specific language of the 14th Amendment to the U.S. Constitution, one of the Reconstruction-era amendments enacted after the Civil War to make sure children of former slaves would be full citizens.

“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,” says Section 1 of the amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

In short, if you’re born here, you’re a citizen regardless who your parents might be and regardless of their immigration status or citizenship. No state can ever do anything to diminish that right to citizenship.

But Morrow and partners paid the state attorney general’s office $200 to register and seek a title for an initiative aiming to do precisely that. If they can gather 433,971 valid voter signatures, they can even put it on the ballot.

Seeking somehow to circumvent the 14th Amendment, these immigration activists try to hide their true intention. Their measure doesn’t specifically deny citizenship to anyone, even though that is its plain intent. Rather, they would forbid hospitals from issuing birth certificates to newborns lacking at least one U.S. citizen or legal immigrant parent. This would have to be proven via one of a variety of documents.

For those who can offer no such proof, the measure would have hospitals issue a “certificate of live birth for birth to a foreign parent.”

Of course, under the 14th Amendment, that baby would be a U.S. citizen no matter what his or her birth certificate might be titled. But the purpose here is at least as much to deny such children the benefits of citizenship – things like public schooling and emergency health care – as it is to deny them citizenship itself.

A birth certificate with caveats, like this one, would likely be taken by unsophisticated parents speaking and reading little English as signifying something short of citizenship.

This is clearly unconstitutional under the second clause of the 14th Amendment, which forbids any law abridging the “privileges and immunities” of any citizen. Just such abridgment is its exact intent. So it’s very unlikely a “foreign parent” birth certificate will ever be issued in California or anywhere else, until or unless the 14th Amendment itself is amended or repealed. Since the amendment also guarantees all citizens equal protection of the law, this country would be a very different place if the amendment ever disappears or is substantially changed.

Morrow and his associates know all this. Their aim, clearly, is to discourage would-be immigrants from coming here solely for the purpose of giving birth to new U.S. citizens. Called "anchor babies" by some, their very citizenship raises family unity issues whenever their parents are threatened with deportation.

It is, of course, far easier to put up $200 to get a putative measure titled and put into circulation than it is to raise the $1 million-plus usually needed to qualify it for the ballot.

So this one may never come to a vote. But that doesn’t appear to matter much to its sponsors, who have now raised the issue of citizenship for children of illegal immigrants in a unique and high-profile manner.

-30-
Email Thomas Elias at tdelias@aol.com. For more Elias columns, visit www.californiafocus.net