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Wednesday, August 18, 2010

Schuck's Genuine Connection Test for Citizenship Will Hurt Kids

The second-biggest controversy of the summer (behind the Ground Zero mosque) is apparently illegal immigration. Some Congressmen have advocated amending the Fourteenth Amendment to clarify that so-called "birthright citizenship" -- the concept that anyone born within our borders is an American citizen with no further action or qualification necessary -- would not be allowed to the children of illegal immigrants even if born here.     


The debate was joined over the weekend by Yale Law School professor Peter Schuck, who penned a New York Times op-ed titled "Birthright of a Nation."


I know Peter Schuck.  I was a student in Professor Schuck's first-year Torts class many years ago at Yale and remember his sensitivity to the many logistical considerations in crafting legal and regulatory solutions for problems. It is with some surprise to read that he suggested conditioning birthright citizenship on having a "genuine connection" to our society.  Schuck's idea amounts to interesting scholarship -- it's thought-provoking and would make for an excellent afternoon of debate among the Mensa crowd on Wall Street (that is, Wall Street in New Haven -- Yale Law School's address is 127 Wall Street, if I recall.)   But in the real world -- never mind the world governed by realpolitik -- I foresee many logistical problems to these proposals.


Discarding the "bright line" rule of birthright citizenship will place all Americans -- and most especially, our children -- at risk of having to establish their bonafide right to be here. Unless we have a national registry of all citizens, all of us, to be fair, will have to justify our citizenship. As for our children, if citizenship depends on one's parents, an orphan or abandoned child would be without the means to meet his burden of proof on citizenship. A tenth-generation "American" who is disowned by his family would have to prove his "genuine connection" -- and in the meantime face the risk of future expulsion from his country.


What happens if the "genuine connection" standard is adopted as the requirement for citizenship?  How would this be measured?  Who would do the measuring?


What happens to those millions of currently American citizens who were born in Puerto Rico, a commonwealth and island which every few years votes in highly-charged elections to maintain that commonwealth status rather than elect statehood?  What would the "genuine connection" be for Puerto Ricans born on the island, where Spanish is the predominant language?  Is language a factor in determining this "genuine connection"?


A national citizenship bureaucracy will need to administer these processes and create a registry, giving many jobs to bureaucrats and lawyers while placing our futures in doubt. Moreover, such a registry will threaten our privacy and render us more vulnerable to abuses from the miscreants among the growing legions of unsupervised, unaccountable government workers with access to our "file."


We should also fear whom among us will be chosen to judge whether we have the requisite "genuine connection." What political considerations could affect this process? Would tomorrow's political opponents be at risk of losing citizenship? Can we all run the risk of becoming tomorrow's Napoleons, doomed to exile on Elba? (Hey, maybe Staten Island will do.)


It also deserves noting that this entire controversy exists only because of the federal government's initial failure -- or conscious indifference -- to securing our borders. The solution to the government's failure to exercise its power is not to grant it even more power. And our constitutional rights should not be diminished every time our government's shortcomings are revealed.


Eric Dixon is a New York attorney.  He can be reached for comment or consultation at 917-696-2442 and edixon@NYBusinessCounsel.com.

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