Citizen by birth: Part 3

Rep. Steve King (IA-4) introduced H.R. 140, the Birthright Citizenship Act of 2017 on January 3, 2017.  He has attracted 17 co-sponsors, so far.  This bill, if passed, and enacted would only allow children born in the United States a citizen if they are born to at least one parent who is a citizen or national of the United States, a lawful permanent resident, or alien performing active service in the armed force.  While President Donald Trump has talked about ending birthright citizenship, it is by no guarantee that this would pass the House much less make it through the Senate.  Ultimately, the legislative filibuster is likely to be nuked, but I don’t believe this would be the legislation that causes the filibuster to die.

The discussion of the constitutionality of revoking birthright citizenship is largely predicated on the Supreme Court case of Wong Kim Ark v. United States.

Wong Kim Ark

A lot of this section comes from Charting the Future by John Semonche.  Wong Kim Ark was born in 1873 in San Francisco to Chinese parents.  The family continued to live there until 1890.  At that point, he and his parents left for China.  Wong Kim Ark returned to the United States in 1890 and was admitted on the claim that he was a natural born citizen of the United States.  He went to and back from China in 1891 and was barred from entry upon his return.

The Chinese Exclusion Act was signed into law by President Chester Arthur in May of 1882.  This was the first major piece of immigration legislation that was passed and signed to halt immigration.  Prior to this law, there were not any major immigration laws.  Some on the right even admit that there was not any immigration laws prior to this legislation.  The law would effectively bar immigration from China for 10 years and prevent Chinese from being citizen.  It was extended through the Geary Act of 1892 for another 10 years and was made permanent in 1902.

Under the Chinese Exclusion Act, Wong Kim Ark was barred from entry. This case eventually found its way to the Supreme Court.  Justice Horace Gray became the justice to save the case for Wong Kim Ark.  Justice Gray began to look at the claim of citizenship against the wording of the first section of the Fourteenth Amendment.  Then he began to look at what the rule of citizenship was prior to the enactment of the Fourteenth Amendment.  He saw in the Constitution the phrase natural born citizen without any sort of definition of what it actually meant.  Justice Gray began to look for the examples of common law.

After a while, he was able to locate a principle where the birth within the jurisdiction of the king conferred nationality, with only children born to foreign diplomats and to enemy aliens being excepted.  Working through that, Justice Gray stated that this rule was in force in all of the British colonies, he argued that at the time of the Declaration of Independence and the ratification of the Constitution, that this principle was continuing at that point.

Justice Gray did face a dilemma, though.  The purpose of the Amendment, according to some at the time, was that it was largely focused on race and granting citizenship to freed slaves.  This is, still, part of the argument today.  Justice Gray noted that all members of the Supreme Court in 1873, clearly recognized that the Fourteenth Amendment related to place and jurisdiction of birth and not to race or color.  He went further citing the opinions of Attorneys General since the time of the ratification of the Fourteenth Amendment that consistently find that birth within the country confers citizenship.

Justice Gray still had to deal with the pesky issue of being able to stop natualization based on race, as the Supreme Court found that to be a constitutional act of Congress, and being to stop citizenship.  Justice Gray wrote in his opinion that Congress could confer citizenship but not take it away.  If they were allowed to take citizenship away, he wrote, “it would be i nthe power of Congress, at any time, by striking negros out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.”

 

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A quick electoral guessing game

Here is the Presidential voting results since 2000 for a major metropolitan area.  I’ll give you more information about this area for a later post

Year R Vote Share R Raw Votes D Vote Share D Raw Votes
2000 48.06 27660 48.62 27984
2004 50.78 34938 48.74 33534
2008 50.21 33634 47.71 31958
2012 49.49 31820 48.67 31297
2016 56.88 35205 37.69 23328

Citizen by birth: Part 2

Birthright citizenship prior to the 14th Amendment

Strangely enough, the United States Constitution is remarkably silent on the issue of who is considered a citizen in the United States.  It references citizenship in defining who is eligible to run for the House of Representatives, the Senate, and President of the United States.  Our founding document did give the power to Congress to determine naturalization.  While the constitution is silent on the issue of what makes a person a citizen, the courts routinely were able to use English common law to set a precedent for jus soli citizenship.  Alexandra Wyatt wrote in her report for the Congressional Research Service titled “Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate”, noted that the Supreme Court in Smith v. Alabama opined “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, are to be read in the light of its history.”   Wyatt found that in Inglis v. Sailor’s Snug Harbor, Justice Story wrote in a dissent (on other grounds) that “nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”  But these are not the best examples for a number of reasons to say that the case is settled.  The New York Court case of Lynch v. Clarke was probably a better example.

Julia Lynch was born to Irish aliens during a “temporary sojourn” in 1819.  She, with her parents, departed to their native country and lived there continuously from then on.  The court was asked to rule on the claim of Julia Lynch, if she was a citizen, because if she was, she was set to inherit real estate.  Her father did not state any intention of becoming a citizen of the United States and even though he had a daughter while in the United States, they had no real intention of staying.  They moved back to Ireland. The New York Court held that Julia Lynch was a citizen of the United States.  In the opinion, the justice wrote “the right of citizenship, as distinguished from alienage, is a national right or condition. It pertains to the confederated sovereignty, the United States; and not to the individual states…the policy and the legislation of the American Colonies, from their earliest times until the Revolution was adapted to foster immigration, and to bestow upon foreigners all the rights of natural born subjects…the uniform course was to extend, not to abridge, the right of citizenship.”  The justice continued until ultimately concluding “I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United Stats, whatever were the situation of his parents, is a natural born citizen.”

In one of the most infamous rulings in the United States Supreme Court’s history, the Taney court, in Dred Scott opined that the class of citizenship could not be given to descendants of slaves and to people of African descent, in general.  The Dred Scott case is one of the worst decisions that the Supreme Court has issued and is rarely cited as any precedent outside of hiding in Shelby County v. Holder and by Trump confidante and anti-birthright citizenship crusader Kris Kobach.  After the Civil War, which more or less repudiated the decision in Dred Scott, it was still up to Congress to determine who could be naturalized and become a citizen.

 

 

A letter to State Senator John Murante regarding winner take all legislation in Nebraska

Dear Senator Murante and staff,
In the past, Senator Murante has been a sponsor of legislation to change how Nebraska allocates our electoral votes. The state can potentially split the electoral votes based on how a Presidential candidate performs in each Congressional district. In the time since Nebraska made this change, the split has only happened once, in 2008 with Barack Obama.
There was talk last session when the legislation died that the Senator would reintroduce the bill in the next session and the next and the next until the legislation passed. The idea seemed to be that the Democratic candidate for President would have a good chance to win Nebraska’s 2nd Congressional District and the electoral vote associated with it.
While the Senator’s district does not cover all of the 2nd Congressional District, there is a number of constituents of his who live there. Many have seen it as a cynical ploy from the Senator on the off chance that he would seek the Congressional seat, some day. It would be tougher for a Republican candidate to win the district if the President was able to carry the district (although, as we know it happened in 2008).
With Nebraska being close to a one party state, many Democrats and moderates increasingly find it frustrating that their voices are not heard in the state. Often times good governace is sacrificed in the effort to help consolidate power by Republicans and keep many from having their voices effectively heard. The political science research suggests that competitive elections have a positive associate with increasing turnout for later elections. This is critical for all states to try to increase voter turnout. Because there are less people in each Congressional District than the state as a whole, many find that their voices matter more for these Presidential elections with the potential split of electoral votes from Congressional Districts. With the brain drain that Omaha has been experiencing for college graduates leaving the state, it is critical that we do whatever we can to help encourage them to stay. Simply allowing the current law on the books is a potential draw for younger adults who hear about the city from many different news outlets across the country. Moving to winner take all electoral system will only exacerbate the issue. Many college graduates want their voices heard.
After Senator Murante voted in favor of repealing the death penalty and subsequently voted against overriding the veto, he cited the overwhelming response from his constituents as to why he changed his mind. I am asking Senator Murante to reconsider his position on changing Nebraska changing our electoral system to winner take all. This will make many people feel that their government is not listening to them, that their votes don’t matter, and will drive even more young people away from Omaha and Nebraska at a time when we need them the most.
Sincerely,
Josiah

Citizen by birth: Part 1

 

Citizenship by birth

If you are born in the United States, you are a citizen of the country, regardless of the citizenship status of your parents.  This is known as jus soli (“right of soil).  Advocates for ending birthright citizenship talk about moving the United States to the same doctrine as many of the other countries in the world to change citizenship based on the status of your parents, this is known as jus sanguinis (“right of blood”).  This is why when an undocumented immigrant has a child here, the child is a citizen.  This is the legal doctrine that creates the idea and derogatory term as “anchor baby.”  According to the Pew Hispanic Center, about 340,000 babies in 2008 were born to those here illegally.

More recently, in the last few years, at least, there has been increased scrutiny on maternity hotels in the United States.  This is where immigrants from other countries will come to the United States for the expressed purpose of having their child so that the child can gain citizenship in the United States.  Even those opposed to ending birthright citizenship note how this causes an increased difficulty for mothers and babies because the babies might not be properly cared for.

Some seemingly moderate Republicans have a view on ending birthright citizenship, such as Judge Richard Posner and Senator Lindsey Graham or Rand Paul.  All think that it would be better practice to end this immigration practice in an effort to curb immigration.  But these views have mainly been on the fringes of the Republican Party and outside the mainstream of the Democratic Party, as well.

There are many reasonns, looking back, where we should have known that the Republican Party, writ large, would captulate to their party’s nominee, whoeveer it was.  The one that probably stood out the most at the time, that was undeercovered was when Donald Trump talked about ending birthright citizenship.  May of the Republicans who were running decided to try to appease the leader in the polls istead of standing up for what they previously thought was right.

The most egregious example of one of the candidates bending over backwards waas former Louisiana Governor Bobby Jindal.  Jindal claimed his citizenship through his parents, almost explicitly through the idea of birthright citizenship.  Jindal’s parents were not citizens but he was able to claim citizenship because of the fact that he was born in the United States.

Chris Christie and Scott Walker also came out in favor of ending birthright citizenship to gain favor with the Republican base that they needed to continue in their presidential runs.

Some of the Republican candidates had previous issues with the idea of birthright citizenship.  This included the South Carolina Senator, Lindsey Graham, who once said that immigrants could “drop their babies and leave.”.  This also included Kentucky Senator Rand Paul.  Both of these Senators sponsored legislation ending birthright citizenship in the Senate.

The principled Conservative, John Kasich, previously supported ending birthright citizenship but ended up denouncing that end in his presidential run, this time around.  He talked about reforming the immigration system that we have, including a path to citizenship for many of the undocumented immigrants, out there.

And some tried to hold strong to their values such as former Florida Governor, Jeb Bush and Florida Senator, Marco Rubio.

I’m not trying to pick on Republicans with this idea.  Senator Harry Reid once offered up legislation to end birthright citizenship but over the course of the last 20 years, has moved from immigration hawk to an immigration reform advocate.

Ending birthright citizenship is not really an idea that can be laughed off, at this point.  Republicans hold a trifecta in the federal government and will hold a majority on the Supreme Court once Trump puts his nomination through.  Representative Steve King of Iowa will likely push his legislation of ending birthright citizenship the first day the House is in session, like he does seemingly every session, now.

The ending of birthright citizenship is a direct assault on the 14th Amendment of our Constitution that was passed at the end of the Civil War.

Because of this and because of the possibly high importance on this issue from both Congressional Republicans and the President elect, what I want to do is look at the history of birthright citizenship and why I think it is so important and ultimately talk about why the attacks on it are misguided and unfounded.