The summer months of 1967 are recalled by many middle-aged hippies as the “Summer of Love.” The summer of 2010 may be remembered as the “Summer of Immigration Discontent.” From Arizona to Nebraska, and in political contests from California to Georgia, immigration debates raged white-hot across the land.
The Fremont, Nebraska ordinance has been placed on temporary hold, and the Arizona law is now firmly enmeshed within the federal judiciary (which rarely is applauded for acting swiftly). Still, the visceral reaction by many in this country to the topic of illegal immigration is not likely to die down any time soon; and certainly not before the vote in November.
Politics asides, the fact that at least some aspects of immigration policy are now being teed up for what is hoped will be definitive judicial rulings, is welcome news. If the Arizona case moves through the 9th Circuit Court of Appeals and to the Supreme Court, all 50 states hopefully will have at least some guidance regarding whether and to what extent they can – consistent with principles of federalism – interfere with and enforce federal responsibilities. And, if the courts take notice of the Fremont, Nebraska ordinance, perhaps municipalities across the country will better understand that infringing civil liberties of all in order to enforce immigration policies against a few, is not a permissible exercise of local government power.
Of special interest, however, as we enter the final month of this summer’s immigration discontent, is the issue of whether the 14th Amendment really does require states and the federal government to recognize as full-fledged citizens of the United States, babies whose only connection with this country is the fact that their mother was in the country unlawfully at the moment of their birth. Just as the Supreme Court had never, until its Heller decision in 2008, ruled definitively that the Second Amendment in fact recognized an individual right to keep and bear arms, the high Court has never decided the scope or intent of the 14th Amendment’s so called “anchor baby” language.
Perhaps now one or more states will take action directly (through a legal challenge to the 14th Amendment) or indirectly (through passage of a state law to be challenged by the administration) to determine whether this 1868 Amendment, designed to ensure citizenship for former slaves, should continue to be interpreted to force states to recognize as recipients of taxpayer-funded services in their states, children born to foreign mothers not even lawfully in the country. If this is part of the legacy of the summer of 2010, it will not have been such a bad one after all.