In Defense of Birthright Citizenship

Donald Trump brought it up, but it is hardly a new contentious topic with immigration reform- birthright citizenship.  For those who argue against it, much of the argument is rooted in ignorance of the history and a tendency to see things in terms of black and whites.  Such is not the case.  For the first 100 years of this country’s Constitutional existence, there was no definition of national citizenship, although our Founders clearly had an idea.  For example, they required that a Senator be a “citizen” for nine years. The reasons for this lack of definition are twofold.  First, they came from the proposition that a government does not create rights, but protects natural, God-given rights.  The second reason is that the concept of “citizenship” was well-settled at the time.  In fact, the notes from the Constitutional Convention do not mention the subject, nor do the Federalist Papers.  And why is that?

The reason is the accepted common law understanding at the time which dates to King James I in 1608 who declared that a person born within the “realm” is a citizen of it and worthy of the kingdom’s protection.  There were two exceptions- children born to diplomats of another kingdom or nation, and invading armies. These individuals were not “subject to the jurisdiction” of the kingdom/nation: they owed their allegiance to their home country.  This common law principle establishes citizenship as a consequence of geography and is known as jus soli.

The opposite- citizenship determined as a result of the nationality of the parent(s)- is known as jus sanguinus and has a shorter historical life.  It can be traced to France in 1804.  And when the first immigration and naturalization laws were written, it was under the understanding that the English common law tenet of jus soli was in effect in the United States.  Every text and law book from the 18th and 19th century note this.  The opponents of birthright citizenship are, in effect, arguing for jus sanguinus totally ignorant of these historical facts.

Furthermore, Justice Joseph Story- one of the foremost Constitutional scholars ever whose work resonates today- noted this fact in an 1830 case involving a South Carolina woman married to a British soldier during the Revolution.  Story, without equivocation, noted she was an American citizen by virtue of her birth on American soil despite her allegiances elsewhere.  And a New York case- Lynch vs. Clarke- rejected the notion of jus sanguinus and the argument that birthright citizenship was an antiquated legal doctrine.  That involved the case of a woman born to foreign nationals who gave birth to her in New York even though neither the parents nor the child lived or owed allegiance to the United States.  Yet, by virtue of her place of birth, the courts again reiterated birthright citizenship.

If all this was and should be settled law, then why the controversy now?  The reason is the 14th Amendment and some misinterpretation- bolstered by some contemporary legal scholars- specifically over the “subject to the jurisdiction of” subclause in that Amendment.  Five words give the opponents of birthright citizenship their entire arsenal.  One argument goes, “How could the child of an illegal immigrant be subject to the jurisdiction of the United States when they are not even supposed to be in the country?”  The reason is simple and, in fact, it gives greater weight to birthright citizenship.  Leaving aside anchor babies, someone here illegally is clearly subject to the jurisdiction of the United States.  Suppose an illegal immigrant is caught, tried and convicted of murder.  Do we waive our criminal laws because they are an illegal immigrant?  This is was actually a case involving an illegal immigrant sentenced to death which the Supreme Court upheld.  Although not a birthright citizenship case, it illustrates that even an illegal immigrant is subject to the jurisdiction of US and state criminal laws.

So why the need for that qualifier in the 14th Amendment in the first place?  The 14th Amendment directly derives from the Civil Rights Act of 1866 and its shortcomings.  That law, in turn, was designed to specifically over-rule the Dred Scott Decision which is probably the most frontal assault on birthright citizenship ever.  After 1808, the importation of slaves was prohibited under the Constitution, but the practice continued nevertheless illegally.  In effect, slaves brought into the United States after 1808 are the equivalent of today’s illegal immigrants the difference being today’s immigrant came here voluntarily.  If the purpose of the 14th Amendment was to overcome the shortcomings of the 1866 law, to definitively overrule Dred Scott forever and confer legal citizenship on the former slaves and their progeny, then it could have said so and stopped there, but it didn’t.

In fact, the original drafts specifically referred to “African Americans.”  This was later changed (after less than a day of debate) to broader language.  During the debate, the question arose as to whether Chinese children born in the United States to Chinese immigrants who were flooding into California at the time would be considered US citizens under this constitutional definition.  The writers and sponsors of the Amendment answered in the affirmative since it was simply codifying in the Constitution jus soli.

Also before the 14th Amendment, many states had de facto immigration laws.  Many felons, upon release, were banished to another state and some states excluded them.  However, this made the ex-felon no less a citizen of the United States.  As final proof, the authors of the 14th Amendment noted that the subclause was declarative, not creative.  It was simply stating what was the law of the land at the time and that law was jus soli birthright citizenship.  The authors noted that birthright citizenship was the accepted standard provided the parents (and thus children) were “not subject to any foreign power.”  And by that, the common law definition meant children born here of foreign diplomats, or invading armies.  That is it- plain and simple- the two exceptions to “subject to the jurisdiction of.”

Before moving on, opponents of birthright citizenship often cite certain historical arguments from the Congressional debate to allegedly bolster their arguments today.  Those historical arguments need to be placed in their proper context since the debate often revolved around Indians.  However, Native Americans were always considered “sovereign nations” under the Constitution and thus not considered US citizens despite being born on US soil.  One can look at them as the largest contingent of “anchor babies” in the history of the United States.  And such was the state of US law until an act of Congress made them US citizens in the early part of the 20th century.  Using the debate over Indians to bolster one’s argument against birthright citizenship is silliness of the highest order and completely misses the legal and constitutional mark.

Which is probably why opponents today often cite the case of Elk vs. Wilkins.  This case involved an Indian who moved off the reservation to Omaha and wanted to vote.  Justice Horace Gray rejected Elk’s argument asserting birthright citizenship, and in fact went further in that he pledged his full allegiance to the United States (hence, he was subject to the jurisdiction of) and renouncing his tribal allegiance.  The rejection of his claims originates more from the fact that he was an Indian rather than the wording of the 14th Amendment.  Native Americans were a whole other category and treated so.

This may explain Gray’s apparent about-face in the case of United States vs. Kim Wong Ark- perhaps the closest case on the issue the Supreme Court has confronted.  Studying not only the history of the 14th Amendment, Gray went further and chronicled US law prior to its passage and came to an unmistakable conclusion: birthright citizenship was the law of the land.  The subclause in the 14th Amendment was, as its authors noted, declarative of existing law at the time.  It neither created, clarified, distorted, or qualified that which was already in existence.  Gray went further and found more evidence for birthright citizenship.  Although the primary purpose of the 14th Amendment was to (1) overturn Dred Scott and (2) give Constitutional credence to that which was already understood to exist, the purpose was to expand citizenship by creating more citizens, not place restrictions on them.

The importance of the decision cannot be underestimated.  It has been cited in cases involving children and minors in a myriad of cases having nothing to do with immigration or one’s legal status in this country.  In all those cases, the conclusion boils down to one commonality: children should not pay for the sins or illegal acts of their parents.  And since jus soli birthright citizenship is the law of the land, children born on US soil are, by nature and definition, subject to the jurisdiction of the United States.  Thus, even if we give the opponents of birthright citizenship the benefit of the doubt they do not deserve, the children meet both criteria in the 14th Amendment even if their parents do not.

Which brings us to the political reality.  Obviously, the government, given these facts, is free to deport the parents and foreign born siblings for their illegal immigration to this country.  But, we know that will never happen.  Hence, the term “anchor babies.”  Despite efforts by a variety of people to address the “problem” in the very recent past, proposed legislation has gone nowhere.  Besides the politics involved, every proposal has created serious constitutional “what if” scenarios with insufficient answers.

Some have noted that this can be changed with the correct wording.  Some legal scholars believe a Constitutional amendment would not be necessary and that Congress has the authority to legislatively define citizenship through their 14th Amendment Section 5 powers.  Richard Posner is the most cited scholar although for the life of me I cannot understand why any true conservative would ever cite Richard Posner (believes in abortion rights including partial birth abortion, wrote decision striking down gay marriage ban in Wisconsin, believes in bulk collection of data by NSA, etc.).  This is ludicrous to the 10th degree.  Congress cannot pass a law negating what the Constitution itself confers or protects.

The conservatives arguing for an end to birthright citizenship are misguided.  They are likely to be the ones arguing for leaders who adhere to the Constitution.  Yet, where the Constitution is clear, they simply ignore it to further their agenda.  It is unprincipled and anti-Constitutional.  If your entire argument hinges on five words in an 80-word clause of a Constitutional Amendment itself coming in at over 500 words, you do not have much of a leg to stand on.  When history and the limited Supreme Court precedents further weaken your argument, you have less of a leg to stand on.

This entire issue totally distracts from the larger issues when it comes to immigration.  They are (1) border security, (2) enforcement of the existing laws, and (3) a workable and orderly system of legal immigration.  Once these criteria are met, then we can maybe debate and argue birthright citizenship, but by then it may be a moot issue.  Until then, opponents are like Don Quixote fighting a windmill and just as delusional.

{NOTE: I apologize for the length of this entry, but it was required to do this issue justice.}


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