I skipped a section which was about Congress legislating who is a citizen and what decisions that they should make.
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.
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.