Immigration and Birthright

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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69 Responses

  1. RTod says:

    One thing I’m surprised never comes up in the new debate is the reason WHY we passed the 14th amendment. It wasn’t for immigrants. It was to counteract laws that treated people who had legally been here for generations and their offspring as second-class citizens. These included laws that dictated where they could live, where they could work, what they could own, what rights (including the freedom of where they might worship) they would have to forgo. Prior to the 14th, States, towns and counties could actually choose who they wanted to be citizens (or not) and thereby get around granting those annoying constitutional rights to “the coloreds.”

    Looking at your most recent post regarding gay marriage, Jason, as well as Mark & everyone else’s on Mosques, it seems especially terrifying that we are actually considering this right now.

    I take proponents of this proposed amendment at their word that it’s only about illegal immigration. But in today’s climate, were it to ever actually pass it’s hard not see it being aimed at muslims, gays, and whoever else ends up the cultural boogeyman of tomorrow.Report

    • Scott in reply to RTod says:


      Why not consider changing the 14th amend? Surely those who wrote it and advocated for it never considered we would be in the situation we are now with the fed gov failing in one of its basic duties, to control our border.Report

      • Imaginary Lawyer in reply to Scott says:

        @Scott, there are all kinds of things about modern America that those who wrote the Constitution, or various amendments like the 14th, never contemplated. For example, the notion that black women would have the same standing under the law as white men. I’m baffled at the notion that “the world is not the same as in the 19th century” is presented as any kind of substantive argument for scrapping the 14th Amendment, particularly as paranoia about unlimited immigration is not at all new.Report

      • RTod in reply to Scott says:

        @Scott, To be honest, I’m not quite sold on the anti-immigration movement. And not because of the security/economic/logistical reasons that underpin it… I totally agree with those.

        And I think I would feel less hinkey if we focused on those that hire and profit off of illegal imigrants. This seems to be the obvious easier option. I do risk management for a variety of industries; one of them is nursery and landscape. The idea that the “IDs” forged are remotely believable or fooling anyone is a joke. In our city, all it would take to get rid of IAs would be to come down in a financially punitive fashion on those that hire them.

        That we choose instead to focus on the “dirty beaners” (as a local talk show host refers to them) worries me that we aren’t so concerned with the real potential issues so much as finding a politicaly expedient scapegoat. I worry that focusing on the 14th keeps the focus there, rather than on actually fixing a problem I’m not entirely convinced we really want solved. (at the expense of higher food prices, labor, etc is want I mean)Report

        • Trumwill in reply to RTod says:

          @RTod, I have been playing around with the idea of using the immigrants themselves as a primary tool of enforcement. If you drop the dime on your employer (or whoever provided you with the fake IDs), you get free relocation to somewhere else in the country and a green card.

          I disagree that the IDs are universally transparently fake, though. I had a former employer that got caught with an illegal and he had absolutely no interest in hiring illegals.Report

      • Alesis in reply to Scott says:

        @Scott, The irony is the US didn’t “control our borders” in the sense of restricting immigration until well after the 14th amendment was proposed and ratified.Report

        • Scott in reply to Alesis says:


          When did we ever control our borders? We don’t control our borders right now. Not to mention that the 14th was never intended to create an incentive to come to the US illegally.

          Also, let me apologize to those that responded to my comment. The Judge Advocate OBC I’m currently attending has precluded me from responding as much as I want to.Report

  2. Dara says:

    I think the post is absolutely correct, but I wonder what 400,000 deportations a year is, if not “in earnest.”Report

  3. dexter45 says:

    Instead of giving the incentive to illegal immagrants who, if they have a decent job, problably don’t want to move and give it to Americans. I would love to see a law that charged a person 5,000 per illegal that they hire and give 500 for each illegal that an American could drop a dime on. I could make enough to retire by next Thursday. I agree that there isn’t much demand for carpenters right now, but there would be more of a demand for American carpenters if the illgals were gone. As for changing the 14th, I have not done enough research to have a firm opinion, but since it is coming from the right I have my doubts that it is anything other than an election year ploy. Both parties are run by the corps, but the right wing is worse.Report

    • North in reply to dexter45 says:

      @dexter45, No dice Dex. If you pay americans to find illegal immigrants they’ll start shipping them in so they can turn em in for the reward. Americans are an enterprising bunch.
      No, the real way to kill illegal immigration would be, as trumwill noted above, to reward -illegal immigrants- for turning in illegal immigrant employers. Offer some cash and a fast track to citizenship coupled with strictly scaling penalties on employers and you get two salutary effects;
      1: Illegal immigrants will turn in illegal employers in droves. You create a prisoners dilemma: Only the first illegal employee to turn in their employer wins, everyone else looses (the illegal employer gets fined, the other illegal workers get deported or at least unemployed).
      2: You turn illegal immigrants from cheap profitable labor into dangerous potentially costly labor and therefor increase the cost of employing illegal immigrants. Legal employees become safer to hire than illegals. The tendency of unemployed illegal immigrants to very quickly return home has been an amply observed trend.

      Of course both businesses and illegal immigrant groups would go berserk in opposition to such a scheme. And naturally one would only embrace this kind of program if you wanted to, ya know, actually end illegal immigration. The right doesn’t want to: they want an issue they can demagogue to their base and batter the left over the head with while quietly doing nothing of material consequence benefitting both their border security buddies and their business buddies. The left doesn’t want to either; they expect that illegal immigrants represent significant potential future voters (or their children do) and they have humanitarian and multicultural tendencies that illegal immigrants play to nicely.Report

  4. dexter45 says:

    I am a left winger that speaks more than a little Spanish and I have a great deal of sympathy for the illegal aliens. Their governments make ours seem truly enlightened–kinda like Denmark. But I respectively have to disagree about hiring illegals to snitch on their brothers and sisters. They probably won’t do it where I would, plus I could use the money. Do you really think Tyson would hire illegal aliens if it cost them money or if a honcho or two did the perp walk? Also, I would really, really love it to see a Beverly Hills housewife do the perp walk for their nanny.Report

    • Robert Cheeks in reply to dexter45 says:

      @dexter45, “Power to the people, dude!”…raises fistReport

    • North in reply to dexter45 says:

      @dexter45, It’s not a question of hiring them Dex. You simply start a program that says if you’re:
      A) an illegal immigrant and
      B) can expose an employer of illegal immigrants then if you do so you’ll get:
      C) a reward, a small cash reward and a expedited route to a green card for a small employer or a larger cash reward and almost instant green card for a big employer.

      Human nature and the prisoners dilemma would take care of the rest. Employers of illegal immigrants would be turned in by the hundreds. Remember, they’re not snitching about their fellow immigrants, they’re snitching on businessmen and specifically businessmen who often treat them pretty poorly.Report

      • Trumwill in reply to North says:

        @North, well, to be fair they would be hurting their fellow immigrants by stripping them of their employer. It’s also not unforeseeable that there would be raids at the workplace and deportations (of those that don’t step forward) to follow. That’s one of the reasons that I threw the “bus ticket out of town” in there.

        It wouldn’t be pretty, but it would be effective. I would think. The mutual benefit between employers and immigrants would break down. But if we want to tackle illegal immigration, I think that has to happen.

        Of course, being pro-immigration myself, I view the natural result of a mass exodus of illegal immigrants would demonstrate exactly why it is good to have them here and would ultimately lead to a more sane legal immigration policy.Report

        • Trumwill in reply to Trumwill says:

          North, I see you addressed these in a previous comment. Apologies for the redundancy.Report

          • North in reply to Trumwill says:

            @Trumwill, Oh no Trumwill, there isn’t redundancy. I suppose in a way they would be screwing over their fellow employees. I just am doubtful that immigrants from Mexico laboring in, say, a meat packing plant would have the kind of solidarity necessary to prevent every single one of them from cashing in for a nice payday and a free green card.

            And yes, I’m an immigration agnostic myself. But I have observed that most of the most polemist GOP supporters (Generally of a far lower caliber than the highly honorable right wing commentariate at the league) will be brought to a sputtering halt by this suggestion. They just hate the idea of punished the employers rather than the employed.Report

            • Trumwill in reply to North says:

              @North, oh, very much agreed. It’s the lack of solidarity that makes me believe it really might work. What some people overlook, I think, is that there is only so hard you can come down on those with nothing to lose. But… such people are easier to bribe. That’s essentially what we would be doing, with a bit of a stick to go along with the carrot.

              I am not quite as hard on anti-immigration folks as you are (though I am not particularly charitable, either). Those I know – even the ones I believe to be racist – don’t have any goodwill towards the employers. They’re really quite scornful, but only in an afterthought sort of way. They’re the bad guys, too, but tangentially. I think their main point of objection would be that we would be rewarding lawbreakers and snitches. I don’t think it’s that we’d come down hard on (white) employers so much as we’d be giving some (even if it’s a pretty small number) brown people a pass. Any sort of give-and-take is unacceptable.Report

            • Michael Drew in reply to North says:

              @North, Do you guys really think locating the abuse is the problem? Don’t you think the reason we don’t raid these employers is because then we’d have a bunch more immigrants on our hands and what the hell would we do with them? For all the outcry, I think the gov’t is in fact reluctant to undertake mass deportation. Makes for really bad teevee pictures, though a few right-wing politicians could make their supporters happy. But I think the majority of Americans, even those who view immigration as a serious, direct threat to something they value, would watch with a sick feeling in their guts.Report

            • Trumwill in reply to North says:


              I think that a part of the problem is locating the abuse in an actionable way. Something that doesn’t involve making (probably correct but) illegal assumptions on the basis of stereotypes and workforce ethnicity.Report

            • North in reply to North says:

              @Michael Drew , I don’t see it as a salient issue Michael. We raid and deport immigrants now, based on an assortment of criteria. Under the new system we’d still be doing so but I believe under the proposed system a more severe financial burden would be falling more accurately on employers of illegal immigrants. This would cause a significant decline in the demand for illegal immigrants. As the latest recession has shown, when jobs for illegals diminish the illegal immigrants deport themselves by going home.Report

            • ThatPirateGuy in reply to North says:


              I don’t think you would even need to deport the immigrants if you fined the employers something like 60,000 per undocumented worker. If this fine existed and was actually enforced consistently you would solve the labor issue.

              Who would hire someone without making sure that the could work in the country legally if they faced that level of fine? Who would come to the US without correct paper work if they knew that no one would hire them?Report

            • North in reply to North says:

              @ThatPirateGuy, And who would hire somebody knowing that if they did -that person they hired- could turn a nice buck and maybe get a green card for turning them in?

              Yes you’ve touched, in essence, on the beauty of sticking it to the employers. But if it doesn’t involve cracking them “dang immigrent” skulls the right isn’t interested.Report

            • Trumwill in reply to North says:

              Pirate, if what Michael says about the unpalatability of mass-deportation is true, you are correct. I don’t think he is, though, and I think it would be a tougher sell politically to not deport the workers when you’ve pretty much caught them.Report

            • Michael Drew in reply to North says:

              @North (et al), I think the behavior of politicians tends to support me. Obama has been deporting criminal aliens, but fewer students – showing the need to have some greater gripe with immigrants than just sending them back. When Lindsay Graham needs to protect his right flank, he doesn’t call for a round of deportations, he says we need to take another look at the 14th for BC, which itself has nothing to do with deportation. When politicians talk about securing the border, it’s not an explicit call for more deportations, it’s a call to stem the tide of incoming. When/if a real deportation wave hits the country, you will see it in politicians’ rhetoric, and it will be ugly.Report

            • Trumwill in reply to North says:


              Errr… Arizona? That’s not just about keeping people out.Report

            • North in reply to North says:

              @Michael drew, With Michael, I’m in agreement with you on that at least, none of the politicians seriously want to end the issue of illegal immigration. I am merely of the opinion that illegal immigrant kvetchers who so casually dismiss the idea of primarily targeting illegalemployers rather than illegal employees are either being disingenious, unserious or are motivated by something more approaching racial animus.Report

            • Jaybird in reply to North says:

              @North, for what it’s worth, I don’t think it’s racial animus as much as cultural.

              It’s a resentment that one must press 1 for English, for example.

              I’d more compare to how the Quebecois feel about Anglophones.Report

            • North in reply to North says:

              @jaybird, Humm could be Jaybird. But racially or culturally it’s kindof unsavory.Report

            • Trumwill in reply to North says:

              North and I both agree about the unseriousness of public officials. I just don’t think that it’s due to lack of popular support. I think it has to do with political calculations. Democrats see future D voters and too many Republicans want the Hispanic vote or the support of businesspeople that hire illegals to prevent them from doing anything about it.

              I still gotta say, though, that I don’t really get much resistance to “going after employers” when I bring it up with anti-immigration types. It’s just something you’ve got to bring up because it is something of an afterthought for them. The primary objection I get when I do bring it up is that it’s difficult to do because both employers and employees win from the arrangement. And that it’s an incomplete solution because it doesn’t account for those that never intend to work but come here for the free welfare and anchor babies and all that.

              As North points out, though, when the jobs dry up, a lot of them go back. If there’s still a problem after getting rid of the workers, I figure we can address it then (though I really think a more pressing matter will be to figure out what to do about the shortage of low-skill, low-pay labor).

              But one of the problems with talking to the more… energetic… border hawks is that they often seem to believe that something must either be a complete solution or it’s not worth contemplating. The fact that a wall would not be a complete solution doesn’t seem to factor in to their thinking.Report

            • Trumwill in reply to North says:

              I think Jaybird is right that it’s more cultural than racial. It’s easier to think of it in terms of the latter because, frankly, most of the more ardent border hawks I know have suspect views on all manner of racial issues. But there are a lot of people that I don’t consider to be racist that are nonetheless flummoxed by our immigration “problem”. I think a lot of that is cultural.

              I went to a wedding in Toronto many years back and was struck by how similar their attitudes were to the Quebecois to a lot of attitudes towards immigrants. Even the stereotypes were pretty much the same. So I think he’s on to something there. I think that we’d be having similar pushback if we were being inundated with Poles. The fact that the Hispanics look different does aggravate things, though.Report

  5. Austin Bramwell says:

    Not an impossible task, but also not a pleasant one. Why take it on at all if it can be avoided?
    And, of course, we could always fail in the task. Why take the risk?Report

  6. Michael Drew says:

    I heard a proponent of 14th A. reinterpretation (a smart-sounding lady) on the radio the othe day saying the reason we need to do this is because “if we can’t enforce our laws, then we need to change them.” Leaving aside the fact that ending BC would create more not fewer non-citizens inside our borders about whom we’d have to do something with the law applying to them, what do we think of that principle? I’d be okay with a new process of amnesty for those here now, but I’ve never really felt all that compelled by the unenforceability argument. We’ve got every right to have a law about who can be here, but to have had that law overwhelmed by demographics. It may not be the smartest policy on outcomes (I don’t think it is), but if we’re inclined to put only so many resources and no mare into deporation or border security, and rely on the looming threat, likely empty as it may be, of deportation to act as a disinxcentive to illegal immigration, why can’t we just go ahead with that policy? There are plenty of laws whose enforcement we deemphasize and underresourced. Again, I’m not arguing that it’s the best policy, but I’ve never been persuaded the status quo is truly untenable. Arizona has always had the right to enforce U.S. immigration law and report cases to INS. Their law is about an internal dispute between state and local law enforcement, in other words, state-level politicking of the issue against enlightened localities. We should have no compunction about declaring it invalid, being that it clearly is.Report

    • @Michael Drew, The trouble with the unenforceability argument is that it’s as compelling a case as I can think of for the repeal or loosening of a law, and as compelling a case as I can think of against the strengthening of a law.

      If the argument is that a law is unenforceable because of lack of sufficient resources and law prioritization, then obviously the law doesn’t need to be changed, only the priorities need to be changed. And, of course, if you’re going to demand that priorities be changed and resources shifted, then you need to be able to point out what priorities you are going to bump down the list in exchange and where you are going to get the additional resources to make your law enforceable. With the likely exception of the anti-war paleocons, I don’t see immigration restrictionists giving any indication as to where their resources should come from.Report

      • Michael Drew in reply to Mark Thompson says:

        @Mark Thompson, On resources, absolutely. On the case for repeal, I don’t see it that way. Polities don’t have the right, and might not sometimes be right to set in law certain proscriptions whose enforceability is uncertain? An further, that if certain laws’ enforceability is eclipsed by events, the polity has a duty, just ipso facto, to repeal the law, even if it still wills the behavior to stop?Report

        • @Michael Drew, Without getting into a semantic discussion of the rights of polities, I don’t necessarily have an issue with enacting a law whose enforceability is uncertain. But once a law has become demonstrably unenforceable, I think it becomes incumbent to repeal it because of how arbitrary enforcement necessarily becomes. It’s probably a misnomer to say that a law ever becomes completely unenforceable against anyone, so when we’re talking about a law that is unenforceable, we’re talking about a law that can be enforced only arbitrarily and the less it can be enforced, the more that enforcement becomes arbitrary and selective (e.g., hello, racial profiling!). In many ways, a law that may be at least tolerable if more or less uniformly enforced – since people can rely on it and work around it – becomes increasingly unjust the less it can be enforced.Report

          • Michael Drew in reply to Mark Thompson says:

            @Mark Thompson, I did mean to qualify by saying, assume we agree the polity had the right to impose such a law. I understand the concern, but I don’t think it amounts to a necessary case against the law. It seems that clear rules about enforcement protocols in the context of scarce resources, if adhered to, would be sufficient to address the issue – not requirement a blanket responsibility to scrub the books of laws that are seldom enforced. That’s a radical solution. One model could be explicit secondary enforcement. And to say that law enforcement wouldn’t strictly and equitably adhere to such protocols just raises a problem we’re well aware of in all law enforcement contexts, I suspect.Report

            • Michael Drew in reply to Michael Drew says:

              @Michael Drew, But I don’t dismiss the possibility that in practice the problem can’t be sufficiently addressed that way, so your solution might be merited. Problem is it, too, is quite unrealistic. More so than mine, I’d say.Report

  7. angullimala says:

    My question is how passionate are the opponents of “reform”? I, for one, am pretty passionate but I’m not sure we are, as a whole, nearly as passionate and committed as the “reformers”. It seems like the people who want to keep the 14th untouched are less passionate and committed than those who want to change it. I am 100% committed to opposing this but I’m afraid a lot of people might get squishy in the face of the passionate rage shown by the anti-immigrant crowd and be unwilling to fight over an issue that doesn’t effect them personally.

    * I have yet to meet anyone, in person, who supported denying citizenship to “anchor babies” who wasn’t also at least open to the idea of denying the citizenship to the children of legal non-citizens as well. I seriously believe that this movement is only a first-step in a wider movement to deny citizenship to the American-born children of legal non-citizens as well. I think the focus on illegals is just a wedge. Once they strip it from the constitution it will be up to Congress to define the basis of citizenship and that means they can – and will try to – deny it to anyone they choose.Report

    • Trumwill in reply to angullimala says:

      @angullimala, fortunately for us, they have some major hurdles they have to leap over. They *have* to be a lot more passionate than we are. I am not sure there is enough passion in the world to overcome the barriers to amending the Constitution.

      I think that it’s a given that if they do manage to strip birthright citizenship that it will apply to the children of legal and illegal immigrants. Most likely, though, there would be a provision for those who were born here and (a) whose parents have lived here a long time or (b) who themselves live here a long time. That’s how most countries do it.Report

    • North in reply to angullimala says:

      @angullimala, There is not a chance in hell that they have the political vim to ammend the constitution. Consider what would have to be done:

      -A GOP majority in Congress because the Dems wouldn’t even consider it for a second. The minority in Congress is -powerless- so the ammendment couldn’t even start without control. Difficulty: mild.

      -A disciplined GOP supermajority in the Senate. The Dems would filibuster this one forever and reap endless electoral benefit for doing so. Difficulty; hella hard!

      -A supportive GOP President. Obama would veto this in a heartbeat. Difficulty; looking at the current field I say not a hope in hell until 2016 unless some remarkable GOP contender comes out of the woodwork and unemployment goes over 10%.

      -States sign on. I don’t know, others have better feel than I for state positions on this but I personally am dubious that you could garner state support outside of the south and the plains states.Report

      • Katherine in reply to North says:

        A disciplined GOP supermajority in the Senate. The Dems would filibuster this one forever and reap endless electoral benefit for doing so.

        I doubt it. W. Bush never had a supermajority and did whatever he pleased. The Dems are wimps; they’d fold within a week.Report

      • Trumwill in reply to North says:

        @North, it’s more difficult than that. To amend the Constitution, they need 2/3 of each house plus 3/4 of the states. The President doesn’t matter, though, nor does the filibuster come in to play. Or they can go straight to the states and get 2/3 of them to sign on for conventions and 3/4 of them agreeing. I just can’t imagine that happening. At all. No matter how spineless the Democrats become.

        I can’t imagine a controversial amendment ever getting passed again. Even pretty popular ones.Report