Tag: 2017

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.

 

 

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.