Thursday, August 20, 2015

Birthright Citizenship

Donald Trump, the leading Republican candidate for President, contends that if a child is born in the United States but the parents are undocumented immigrants, then the child is not a citizen of the United States. Several other Republican candidates for President have jumped on his bandwagon against "birthright citizenship." Are they right?

The issue turns on the interpretation of the first sentence of the 14th Amendment, the "Citizenship Clause," and specifically the meaning of the words "subject to the jurisdiction thereof." The Citizenship Clause states:
A persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Trump states,
I don't think they have American citizenship and if you speak to some very, very good lawyers -- and I know some will disagree -- but many of them agree with me and you're going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell."
The Supreme Court of the United States addressed the meaning of the phrase "subject to the jurisdiction thereof" at great length in the case of United States v. Wong Kim Ark (1898). That case was decided in the shadow of the Chinese Exclusion Acts that barred persons from China from becoming naturalized citizens. In earlier cases the Supreme Court had upheld those racist immigration laws, but in this case the Court had to decide whether Wong Kim Ark, who had been born in San Francisco, was a citizen within the meaning of the first sentence of the 14th Amendment. The Court ruled that Wong Kim Ark was a citizen of the United States by virtue of being born here even though his parents were Chinese nationals who were ineligible for citizenship. The Court found that the phrase "subject to the jurisdiction thereof" was modeled after English common law, and that the common law was clear about what that phrase meant. It meant that a child born on English soil was a citizen even if the child's parents were foreign nationals, unless the parents at the time of the child's birth had no duty to obey the English sovereign. The Court in Wong Kim Ark described the English common law exception to birthright citizenship in these terms:
But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
The Supreme Court cited numerous cases and quoted numerous authorities from English law on this point, including the English statute of 11 and 12 Will. III (1700), which give "natural-born subjects" the right to inherit from their ancestors even if their parents were aliens. Perhaps the clearest statement of English law was that of Lord Chief Justice Lockburn, from Lockburn on Nationality:
By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
The Court in Wong Kim Ark quoted earlier American authority as well. In Inglis v. Sailors' Snug Harbor (1833) Justice William Johnson had explained why citizenship is conferred upon birth. It is because the government is bound to protect that person; and accordingly that person owes a corresponding duty of allegiance to the government. Here is what Justice Johnson said in Inglis:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign.
Justice Johnson in Inglis echoed Lockburn in describing the exceptions to birthright citizenship:
There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born upon the ocean is a subject of the prince to whom his parents then owe allegiance .... So the children of an ambassador are held to be subjects of the prince whom he represents .... The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.
The Court in Wong Kim Ark concluded:
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.
By 1866 this theory that at birth "allegiance and protection are reciprocal rights" had become a fundamental precept of the Republican Party, and it was a common rallying cry in support of the adoption of the 14th Amendment. Senator Lyman Trumbull, the floor manager of the Fourteenth Amendment, had this to say about allegiance and protection:
How is it that every person born in these United States owes allegiance to the Government? ... Allegiance and protection are reciprocal rights.
There is no doubt that Senator Trumbull and the other Republicans who authored and adopted the 14th Amendment were well aware of the common law principle of birthright citizenship and the theory of allegiance and protection that it was based on.

Birthright citizenship was upheld again in 1934 in the case of Morrison v. California. That case involved the constitutionality of a California law that made it crime to sell land to a person of Japanese descent. At that time persons of Japanese descent were also ineligible to be naturalized as citizens, but Justice Benjamin Nathan Cardozo, speaking for the Court, unequivocally held:
A person of the Japanese race is a citizen of the United States if he was born within the United States.
Cardozo cited Wong Kim Ark in support of this holding.

The 14th Amendment was drafted in 1866, the year after the Civil War ended, and it was intended to eliminate the power of the states and the federal courts to perpetuate racism. Even after the war ended and slavery was abolished, the southern states imposed many legal disabilities on African-Americans. African-Americans were denied the equal right to own property, to enter into contracts, to enter common occupations and professions, to sue, to be a witness, or to serve as a juror. The 14th Amendment was intended to put an end to all of those abuses.

A critical component of this ancien regime was power over citizenship. The southern states believed that they had the power to declare who was a citizen and who was not. This was actually a central plank in John C. Calhoun's theories of "state's rights" -- that the community had the power to decide who was a member of the community -- and African-Americans were definitely not part of the people who were entitled to exercise the power of self-government. Calhoun thought that the State of South Carolina had the power to decide who was a citizen of the state, and that a person could not be a citizen of the United States unless that person was first a citizen of a state. He considered state citizenship to be primary, and national citizenship to be derivative.

The Supreme Court of the United States embraced this racist attitude in Dred Scott v. Sanford (1857), in which the Court ruled that African-Americans, whether slave or free, were not and could never become citizens of the United States.

After the Civil War the Congress and the people of the United States rejected the theory of "state's rights." We deprived the states of the power to declare who is a citizen and who is not. National citizenship became the primary, and state citizenship was now derivative. This reflects what most people today believe; that whether we live in Ohio or California or South Carolina we are all citizens of the United States, and that automatically makes us citizens of the states wherein we reside.

It also reflects another profound belief -- that at its core American citizenship is completely disconnected from blood or race or ethnicity. As Lord Chief Justice Lockburn described the common law of England and as the United States Supreme Court interpreted the Citizenship Clause of the 14th Amendment to mean, "No effect appears to have been given to descent as a source of nationality." All human beings who are born here are citizens! Americans are not a tribe, and our Constitution does not define citizenship in terms of tribalism. This was a choice that our ancestors made in a moment of clarity following the Civil War. I would not lose sight of that fundamental truth.

1 comment:

  1. One blog post I read opines, "Keep in mind that the 5th Clause of the 14th Amendment specifically gives congress the power to enforce the 14th Amendment, not the Supreme Court." I'm not a lawyer or a law student -- what does this all mean? Thanks Professor!


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