Cover Story: One Document, Under Siege

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Photograph by Dwight Eschliman for TIME

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Some opponents of birthright citizenship argue that illegal immigrants are not under U.S. jurisdiction and therefore their children should not automatically become citizens, but this argument doesn't hold up under scrutiny. Senator Lindsey Graham of South Carolina has suggested he might offer an amendment to overturn the principle of birthright citizenship. I've always thought it odd that a nation united not by blood or religion or ethnic identity but by certain extraordinary ideas is a nation where citizenship is conferred on the basis of where you were physically born. It's equally strange to me that a nation that was forged through immigration — and is still formed by immigration — is also a nation that makes it constitutionally impossible for someone who was not physically born here to run for President. (Yes, the framers had their reasons for that, but those reasons have long since vanished.)

Critics of birthright citizenship argue that people come here to give birth — and some do — and that the U.S. has a rash of anchor babies who then get all kinds of rights for their families. But the law says the parents of such a child must wait till she is 21 for her to be allowed to sponsor them to live and work legally in the U.S., and research shows that the vast majority of children of illegal immigrants are born years after the mother and father have arrived in the U.S.

But even so, it's a problem.

There are liberals and conservatives alike who oppose changing birthright citizenship. It's seen as a core American value. It is important to African Americans as well as Hispanic Americans. But it is an outmoded law. However, changing the birthright citizenship law would not end immigration or even slow it. Most illegal immigrants are economic immigrants.

Arizona and now Georgia have passed laws designed to decrease illegal immigration by making it a crime for illegal immigrants not to carry documentation and by giving the police broad powers to detain anyone suspected of being in the country illegally without such documents. A federal district court struck down certain provisions in the Arizona bill.

There may well be parts of these bills that are unconstitutional, but it's unclear what the rights of illegal immigrants are as opposed to those of citizens. The U.S. needs to take a carrot-and-stick approach to illegal immigration. Many progressives and business leaders agree that we need to make legal immigration easier, grant legal status to undocumented young people who enter college or join the military, and staple a green card to every engineering degree earned by a foreign-born national. That's the carrot. The stick is that we need better workplace enforcement, a reasonable standard for policing and more secure borders. We need to make legal immigration easier, faster and cheaper so that illegal immigration becomes harder and less desirable.

There is an old Latin phrase, inter arma enim silent leges, which roughly translates as "in time of war, the Constitution is silent." But it's not just in times of war that the Constitution is silent. The Constitution is silent much of the time. And that's a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

We can pat ourselves on the back about the past 223 years, but we cannot let the Constitution become an obstacle to the U.S.'s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights. The Constitution, as Martin Luther King Jr. said in his great speech on the Mall, is a promissory note. That note had not been fulfilled for African Americans. But I would say the Constitution remains a promissory note, one in which "We the People" in each generation try to create that more perfect union.

A constitution in and of itself guarantees nothing. Bolshevik Russia had a constitution, as did Nazi Germany. Cuba and Libya have constitutions. A constitution must embody something that is in the hearts of the people. In the midst of World War II, the great judge Learned Hand gave a speech in New York City's Central Park that came to be known as "The Spirit of Liberty." It was a dark time, with freedom and liberty under threat in Europe. Hand noted that we are Americans by choice, not birth. That we are Americans precisely because we seek liberty and freedom — not only freedom from oppression but freedom of speech and belief and action. "What do we mean when we say that first of all we seek liberty?" he asked. "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it."

The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution. The Constitution serves the nation; the nation does not serve the Constitution.

That's what the framers would say.

With reporting by Andréa Ford

An extended version of this story and exclusive interviews with experts on the top Constitutional issues of the day is available as an ebook in the Kindle store — click here to download now.

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