An inherent energy: Citizenship by birth

To make it easier to read, I’ve assembled my posts in this series in one spot. This took me a lot longer than I thought it would be.  Hence the reference to President elect.

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 reasons, looking back, where we should have known that the Republican Party, writ large, would captulate to their party’s nominee, whoever it was.  The one that probably stood out the most at the time, that was undercovered 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 instead 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.

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.

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.

Civil Rights Act of 1866

After the Civil War, there was a question of what would happen with the now freed slaves.  The Civil War freed them but the rights of the freed slaves were not immediately clear. Nor was it clear how they should be protected.

Proceeding the 14th Amendment, Congress worked to pass the Civil Rights Act of 1866.  In a Congressional Research Service report titled Birthright Citizenship and Children Born in the United States to Alien Parents, Legislative Attorney Alexandra M. Wyatt researched the debates from the Congressional Globe for the session in 1866.  Wyatt reports the following from this debate:

Senator Edgar Cowan, often cited by  modern opponents of birthright citizenship–objected to the citizenship provision by asking whether “it will not have the effect of naturalizing the children of the Chinese and Gypsies born in this country.”  Senator Trumbull stated that it would, “undoubtedly.” As Trumbull stated clearly in the face of Cowan’s xenophobic remarks, “the child of an Asiatic is just as much a citizen as the child of a European.”  Echoing Trumbull’s definitive statement, Senator Morrill asked the Congress, “As a matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by birth alone?”  Morrill cited,” the grand principle both of nature and nations, both of law and politics, that the native born is a citizen, and a citizen by virtue of his birth alone.”  To erase any doubt, he went on to state that “birth by its inherent energy and force gives citizenship.”

President Andrew Johnson who had ascended to the presidency because of the assassination of Abraham Lincoln vetoed the Civil Rights Act of 1866.  Johnson noted in his veto message his understanding of the citizenship clause of the bill.  He wrote that “every individual of those races, born in the United States, is by the bill made a citizen of the United States.”  Because Andrew Johnson was a terrible president, he vetoed the bill.

Undeterred by the President’s veto, Congress overrode the veto and two months later, Congress moved forward with making the citizenship clause permanent in the 14th Amendment.

The 14th Amendment

Senator Jacob Howard of Michigan was the one who proposed the language of the citizenship clause.  In his explanation, he said that the clause would declare “that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

Senator Edgar Cowan opposed Howard’s citizenship language because he agreed that it would give citizenship to children born of foreign aliens on US soil.  His fear was that it would increase the number of Chinese in California and Gypsies in Pennsylvania.

I’ll pause here.  The fears of Gypsy immigrants and Chinese immigrants are comparable to the fearmongering that we currently have over immigrants from Latin America and to a certain extent the fear of refugees from war-torn Middle East countries.  The charges of immigrants stealing jobs was explicit with Chinese immigrants, specifically.  This eventually led to the Chinese Exclusion Acts.  The Chinese Exclusion Act was the first exclusionary law that our country passed.  I would argue that prior to this law, there was no illegal immigration.  While Gypsy immigrants were not typically referred to as jobs-stealers, they were often attacked for not being sufficiently American and were fairly regularly discriminated against.

Senator Cowan’s objection to the Citizenship Clause was understood to be factually accurate.  Further, other Senators argued that making these children was a matter of sound policy.  Senator John Conness of California:

The proposition before us…relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens…I am in favor of doing so…We are entirely ready to accept the provision proposed in this constitutional amendment, that the children-born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.

Of course, there are some who would jump on the debates of the 14th Amendment to show that children of undocumented immigrants would not be citizens.  They argue that Senator Howard when proposing the citizenship clause made a mistake to prove that they are correct.  He noted that the amendment would

not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

This seems damning to my argument.  Except, if we look at it.  Elizabeth Wydra, in her report, Born Under the Constitution: Why Recent Atacks on Birthright Citizenship are Unfounded, notes that it doesn’t make the argument anti-citizenship clause proponents make.  In her report, she argues that this is not a list of several categories of excluded persons because he did not say, foreigners, aliens, or families of diplomats.

Instead what Senator Howard was arguing, which was part of the debate at the time, is that diplomats and ambassadors while being physically here remain in their home country.  This is the concept behind diplomatic immunity.  Even if, as Wydra notes, it is a legal fiction.

She may get this term from a debate regarding the citizenship clause.  Senator Benjamin Wade of Ohio, during an argument about who would not be automatically granted citizenship said the following:

I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language…By a fiction of law such persons are not supposed to be residing here here, under that fiction of law their children would not be citizens of the United States.

The arguments surrounding the 14th Amendment do not seem to indicate that the children of foreign aliens should not be citizens.  Further, as we’ll see, by making it an actual Amendment to the Constitution, they were trying to protect citizens from the whims of a majority controlled Congress to revoke citizenship.

Based on the arguments from the Congressional Globe, Wyatt argues that “the Framers of the Fourteenth Amendment believed that providing citizenship to persons born in the United States, without regard to race or color was a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence.”  We do not put inalienable freedoms put to a vote.  As the Senators argued when they passed it, the 14th Amendment was intended to establish “a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation.”

Birthright citizenship after the 14th Amendment

During the arguments of the 14th Amendment, there were many arguments about the potential for a rise in immigration.  Many were afraid that some immigrants would try to come here specifically to get the citizenship status of the United States.  This was not an unforeseeable problem, as some has suggested.  The Framers of this Amendment argued that legislation by itself would not be enough to revoke the 14th Amendment because it is an inalienable right.

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.”

While there has not been a court case that directly challenges the 14th Amendment, there have been court cases that affirms the citizenship clause and the idea behind birthright citizenship.  Further, any legislation that targets specific nationalities or tries to revoke already held citizenship by children of immigrants would not be constitutional.

In 1982, Plyler v. Doe, the Supreme Court found that the 14th Amendment extends anyone “who is subject to the laws of a state.”  This case was brought because the state of Texas was withholding funds for children who were not legally admitted and permitted schools to deny enrollment to children who were not legally admitted. In a 1985 case, INS v. Rios-Pineda, the court found that a child born on U.S. soil to an undocumented immigrant was a U.S. citizen from birth.

The consequences of ending birthright citizenship

Margaret Stock in a paper for Cato, argued that birthright citizenship is arguably the reason that the United States has become the superpower that we are.  Without birthright citizenship, thousands of children who are born by undocumented immigrants or who otherwise are illegally in the United States would become stateless.  These children will have no ties to any one country.  They will likely be deported, at our expense.  If they are not deported, they will be able to attend school through high school.  Again, at our expense.

Upon graduating high school, they will be unable to join the workforce in an official way.  They will not be able to go to college.  They will not be able to serve in the military.  They will not be able to start their businesses or receive bank loans.  They will not be able to contribute to Social Security, Medicaid, or other payroll taxes.  They will not pay federal income taxes.

Losing these taxpayers will be significant because there will be a larger bureaucracy that would handle the birth of children as different classes of citizens.  Currently, I can present my birth certificate or certificate of live birth to be able to claim that I am a citizen.  This is issued by a state or local government.  In order to ensure that my child is a citizen, I will have to present this information as well as my partner’s to ensure that we receive the birth certificate and eventually the Social Security Number and Card.  Who will I present this information to, though?  Will it be presented to my OBGYN?  The birthing team?  Will I have to prove this to the Social Security Administration?  Or Health and Human Services?  What information is going to be safeguarded to ensure that my documentation is not fraudulent?  What if the father of a child with an undocumented immigrant mother turns out to be someone different than who is listed?  Will citizenship be revoked, if not, what mechanisms are in place to ensure it is not?

This is an undue burden on those of color and who are poor.  Millions of people in the United States will be flagged as illegally being here or have questions about the eligibility.  They will disproportionately have to prove their citizenship to confer the rights of citizenship to their children.

Further, for those who are here via illegal immigration, whether it is undocumented immigration or overstaying of the visa or what have you, this could potentially move them to have their children away from hospitals and to be at home to not be subjected to discriminatory laws or enforcement of immigration laws.  This could potentially lead to the deaths of many children and mothers.

As it stands, the revocation of birthright citizenship is ahistorical, immoral, and unconstitutional.  The idea of not conferring citizenship by birth is not in the traditions of the United States and goes against the blatant text of the Constitution to assauge misguided fears of immigrants stealing jobs or being criminals.

I will not stand for it.