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Illegal immigration: Can states win fight against 'birthright citizenship'?

Several state lawmakers want to make 'birthright citizenship' – the guarantee that all children born in the US are citizens – the next front against illegal immigration. It could be a tough battle.

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"What is being sought is a clarification of the letter and the intent of the citizenship clause of the 14th Amendment," he adds.

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Legal scholars, however, suggest that the amendment is clear.

This state movement to overthrow birthright citizenship "is clearly unconstitutional,” says Erwin Chemerinsky, dean of the University of California at Irvine Law School. “First, states do not get to decide who is a United States citizen. They never have had this power and never will. Second, Section 1 of the 14th Amendment has been interpreted to make all born in this country citizens. That also makes this clearly unconstitutional.”

Adds Joel Jacobsen, assistant attorney general of New Mexico's criminal appeals division: "It's really about the clearest provision in the whole ... document."

For their part, immigrants-rights groups contest the notion of "anchor babies." It takes 21 years before a child can file for a US visa for its parents, and there's no guarantee that the parents will get one, says Ms. Gold of NALEO.

“It’s too time consuming to be considered a real motive,” she says.

Civil War-era roots

Other rights groups argue that the 14th Amendment's Civil War roots speak to the need for the amendment today. It was enacted in response to laws passed by the former Confederate states that prevented African Americans from entering professions, owning or leasing land, accessing public accommodations, or serving on juries and voting, says Dennis Parker, director of the American Civil Liberties Union Racial Justice Project.

“The fact that legislators are still trying to undermine the citizenship of some Americans shows that the 14th Amendment is clearly as relevant and vital today as it was a hundred years ago," he says.

Even some conservatives suggest birthright citizenship is not the best target in the fight against illegal immigration.

"If we, as conservatives, are to be serious about solving the very real problems inherent in our broken immigration system, then we have to have conservative leaders that are willing to step up and and take an adult approach to solving the problem,” says Robert Gittelson, cofounder of Conservatives for Comprehensive Immigration Reform. “We cannot and should not allow a few fringe elements at the state and local levels of governance to overreach and try to nibble around the edges of what is, by Constitution, a federal problem.”

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