The Annoying Constitution and the Immigrants' Babies

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CommonDreams.org

The Annoying Constitution and the Immigrants' Babies

Give me your tired, your poor,
Your huddled masses yearning to breathe free. . . .
-- Inscription for the Statue of Liberty

Rep. Steve King (R-IA) has shown that even though he is from mid-America and far removed from foreign countries, he is inspired by, and hopes to model his proposal after, the legal actions of the Dominican Republic (DR) , a country that was confronted by exactly the same kind of problem that the United States is confronting except the problem concerns Haitians instead of Mexicans.

The problem of Haitians moving to the DR was greatly exacerbated after the January 2010 earthquake that left many Haitians homeless who then fled to the DR seeking better lives. The lure of a better life in the United States is one of many factors that cause Mexican families to move to the United States. Although the reasons for the immigrations differ, Mr. King believes the DR solution is a model the U.S. should adopt.

The island of Hispaniola consists of Haiti, the western part of the Island, and the Dominican Republic, the eastern part. The DR has a problem with illegal Haitians moving to the DR and then having children who by virtue of their birth become citizens just as the U.S. has a problem with illegal Mexicans moving into the U.S. and having children who are then U.S. citizens. On January 26, 2010, in the Dominican Republic, a constitutional provision amending the DR’s constitution was promulgated.

The constitutional change was the result of a case filed by the Inter-American Court of Human Rights in 2004 in a case involving two ethnic Haitian children who were born in the DR but were denied birth certificates. The DR Constitution provided that anyone born in the DR was entitled to citizenship except for the children of diplomats and people “in transit.” The lawsuit that was filed by the Inter-American Court relied on that provision and in 2005 the two children were awarded damages because the DR denied them citizenship. Notwithstanding that decision, the DR Supreme Court continued to take the position that Haitian workers were “in transit” and, therefore, not entitled to citizenship. As a result, unless they resorted to suing the state, children born to illegal Haitian immigrants were not entitled to receive their birth certificates and without them the children were unable to obtain citizenship papers, enter the university, vote, get free medical care or even get married. On January 26, 2010 new nationality provisions of the constitution were promulgated saying that unless one parent of a child is a legal resident, the child does not obtain citizenship by virtue of being born in the DR. Under the constitutional change a child wishing to get official identification must not only prove his own citizenship but also prove that parents and grandparents were not illegal immigrants.

Peter King was almost certainly influenced by the actions of the DR. On January 5, 2011, the very first day of the new Congress, when some members of Congress were reading the Constitution out loud to prove to a skeptical audience that they know how to read, Steve King introduced a bill to change one of the provisions in the 14th amendment to the U.S. Constitution. As presently written, the 14th Amendment provides that “All persons born or naturalized in the United States. . . are citizens of the United States and of the State wherein they reside. . . .” Mr. King would amend the 14th Amendment to provide that citizenship would only be granted to three classes of people: children of U.S. citizens or nationals, children of permanent residents and children of non-citizens in active-duty military service. Children in the last category would, of course, spend at least the first 18 years of their lives as non-citizens since there is no way that three year olds will be able to enter active-duty military service and thus become citizens. Those children will not be eligible for welfare and other state and local benefit programs available to children who are U.S. citizens. They will, however, have something to look forward to when they attain age 18. They can join the army and thereby receive the myriad benefits that are available to their citizen colleagues.

The 14th amendment was Congress’s response to the 1857 Dred Scott decision, which held that neither freed slaves nor their descendants could ever become U.S. citizens and lacked the ability to bring suit in federal court. Mr. King’s proposal is a response to his own unwillingness, and that of his colleagues, to deal with problems posed by the status of illegal immigrants in this country in a responsible way. The fact that it was the solution found by the DR should be of no comfort to anyone except, perhaps, Mr. King.

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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