United States Commission on Immigration Reform

Testimony of Barbara Jordan
Professor, Lyndon Baines Johnson School of Public Affairs
University of Texas at Austin
Chair, U.S. Commission on Immigration Reform
Before the House of Representatives
Committee on the Judiciary
Subcommittee on Immigration and Claims
December 13, 1995

Birthright Citizenship

Good morning. I am Barbara Jordan, and I am pleased to have this opportunity to testify on such an important matter. I am here in a dual capacity. I was once a member of the House Judiciary Committee, and I have studied the Constitution. Presently, I teach political values and ethics at the LBJ School of the University of Texas. I hope I can bring some education and experience to bear before you today.

I am also Chair of the bipartisan Commission on Immigration Reform. As you know, our Commission has been deeply engaged in debate regarding our national interest in sound immigration policy--in solving problems, completing unfinished business, and avoiding future error. We have issued two reports to date, making recommendations for specific reforms to Congress. Our first report recommended a comprehensive strategy for deterring illegal immigration. It is called U.S. Immigration Policy: Restoring Credibility, and I will have more to say about it in a moment.

Our second report is called Legal Immigration: Setting Priorities, which we presented to Congress this spring. We on this Commission have been gratified that our work has helped this Subcommittee in preparing legislation to advance the national interest in immigration policy. We are a Congressional commission, and it is our job to serve you.

But this Commission has not made recommendations on the matter before you today. As a bipartisan Congressional panel, we have not addressed the 14th Amendment's application to immigration. But, personally I would like to do so now--briefly.

There are profound problems, as I see it, in the Constitutional amendments before this Subcommittee. By making the immigration status of the mother the key to an American-born child's citizenship, for example, one of these amendments would require that the federal government disown its obligations to citizen children. Consider the case of a citizen father married to a foreign mother. If the child is born abroad, the child is automatically made a U.S. citizen upon petition. If the child is born while the mother is in the United States, perhaps by overstaying a tourist visa from Thanksgiving to Christmas, neither the father's citizenship nor the birth on U.S. soil of an American child provides that child American citizenship. In fact, the father's natural right to pass on his citizenship to the child is denied. He must ask the government to bless his child.

But it is not the practical problems, profound as they are, on which I wish to focus. It is the principle.

There are three ways to become an American--by choice, through naturalization; by blood, through having an American parent; and by birth in the United States. It is also true that most nations do not have these three methods. The simplest contrast is Germany. With very few exceptions, you can only be a German if your ancestors were German. There are hundreds of thousands of second and third generations of people, born in Germany, knowing no other nation, who are not German, who will never be German. Congress should think again whether you wish to make the United States more like Germany.

De Tocqueville wrote of America that, "The government of a democracy brings the notion of political rights to the level of the humblest citizens." And that is what we are talking about: citizenship. It is a beautiful word. It is an American word. The modern concept of citizenship is largely an American invention. It has Greek and Roman roots, to be sure. But we grew in the soil of the United States the modern concept of citizenship that so much of the world has adopted at last.

With all due respect to my Republican colleagues, the true "conservative revolution" happened in 1776. The Founders, you will recall, originally fought only to claim as colonists their rights as Englishmen. It was when King and Parliament denied those rights that they took the revolutionary step of asserting that these rights were not granted to them as subjects from the Crown, but that "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights." This idea--the American idea--is that governments do not grant rights. We are born with them.

I would be the last person to claim that our nation is perfect. But we have a kind of perfection in us because our founding principle is universal: that we are all created equal regardless of race, religion, or national ancestry. When the Declaration of Independence was written, when the Constitution was adopted, when the Bill of Rights was added to it, they all applied almost exclusively to white men of Anglo-Saxon descent who owned property on the East Coast. They did not apply to me. I am female. I am black. But these self-evident principles apply to me now as they apply to everyone in this room.

To deny birthright citizenship would derail this engine of American liberty. Progress in America is not an accident. It was immigration that drove us down the track toward a broader and more truthful vision of ourselves. It was immigration that taught us that, in this country, it does not matter where you came from, or who your parents were. What counts is who you are. The 14th Amendment to the Constitution says, in part: "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 in which they reside."

This was originally a statute, the Civil Rights Act of 1866. Its authors knew that, as a statute, it was vulnerable to being overturned by future lawmakers. That, they determined, must not happen. We must not forget the history of the 14th Amendment, or the context in which it was passed. We had fought a bloody civil war. And now, three amendments to the Constitution were adopted--to end slavery; to provide equal protection of the laws; and to guarantee the right to vote.

I do not believe it is possible to amend the Constitution, or alter the meaning of its words, by statute. In this case, any attempt would have significant negative consequences. For example, H.R. 1363 would specify that certain children of illegal aliens are "not subject to the jurisdiction of the United States." Do we really want to give these individuals immunity from federal prosecution for criminal acts? I am not sure how we could prosecute someone not subject to our jurisdiction.

So, if the Congress wishes to deny birthright citizenship to children of illegal aliens, it must follow the intentionally arduous path of a Constitutional amendment. I hope that you will not take this step.

A constitutional amendment requires a supermajority vote in both the House and the Senate and the ratification of two-thirds of the state legislatures, presently thirty-eight states. Even if--which I oppose --it was sound policy to so amend the Constitution, it will take time. It will take resources. It will divide the country on the most profound level--the question of who we are as a people and who says so.

Let me go beyond my personal views here, to speak as the Chair of the U.S. Commission on Immigration Reform. Do not let debate on birthright citizenship distract you from the urgent business of controlling illegal immigration, which is essential to the credibility of our commitment to the national interest in legal immigration.

Ably led by your Subcommittee Chair, Lamar Smith and the ranking minority member, John Bryant, you have an opportunity in this Congress to take significant steps to deter illegal immigration and promote lawful immigration in the national interest. You have labored in this Subcommittee to produce a bill, H.R. 2202, which takes some of the prudent, measured steps recommended by this bipartisan Commission to do what needs to be done. The comprehensive strategy this Commission recommended last year to deter illegal immigration has seven parts:

1) Better border management;
2) Development of a better system for worksite verification;
3) Benefits eligibility consistent with the goals of immigration policy;
4) Deportation of illegal aliens;
5) Emergency management;
6) Reliable data;
7) Attacking the root causes of unlawful migration in the sending countries.

There is no one who knows better than those who serve on this Commission how hard it has been to advocate these tough choices. But we believe that they are necessary and that through your actions as legislators valuable progress in all of these areas is within reach.

Please do not be distracted from these real measures to attack illegal immigration through the Constitutional amendment process. There are far better ways to deal with illegal immigration than to cut the Constitutional baby with a sword and say, "This half is a citizen, and that half is not."

There will be those who will try to deny reality when the whole House faces this issue shortly. But the vast majority of illegal aliens do not come to America to bear children, although it does happen. In three years and dozens of hearings, consultations, and expert discussions, no one has ever reported to the Commission that the vast majority of births to illegal aliens are anything more than a reflection of the large numbers of illegal aliens who are here. The reason most illegal aliens come to our country boils down to three words: They get jobs.

There will be a vote on the House floor on retaining the provision to test worksite verification that the Judiciary Committee approved in H.R. 2202. There will be those who claim that it is not worth testing the system you have endorsed. There are also those who whisper in these hallways that illegal immigration isn't so bad, so long as they will work hard for low pay, so long as they do the dirty jobs that Americans supposedly won't do, so long as their children aren't to become Americans.

Caution: There are nations in the world that have tried this, and we are not like them. We are not a nation that is permanently divided into "us", and "them." You heard last week from my colleague on the Commission, Richard Estrada, who gave as his view that the United States must not follow the Kuwait model, where citizens are the privileged elite and foreigners do the dirty work. I agree.

The Commission on Immigration Reform has outlined a comprehensive strategy to deter illegal immigration--including the development and testing of a reliable system for worksite verification that protects our civil liberties.

I believe that treating us all alike is the appropriate way to attack illegal immigration. I will be delighted to answer any questions.

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