Thursday, August 5

Birthright Citizenship and Immigration

skepticAll 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. -- 14th Amendment, Section 1

To discuss the subject of US citizenship is to re-enact the iconic role of Wile E. Coyote chasing the Road Runner: you dash along confidently in pursuit of the subject, only to suddenly be seized with the eerie sensation that you are standing on … nothing. The dust clears. You reach down to touch the ground … feel only thin air … and then plummet into the canyon far below. For the term “citizen” is nowhere defined in the US Constitution “proper”, i.e., the US Constitution minus the Amendments. Such remained the situation until 1868, and the ratification of the 14th Amendment, which, for the first time, stated an explicit, lexical definition of what constitutes “citizenship”. But even after 1868, a number of issues remained unresolved that still give rise to enough ambiguity to support genuine questions regarding how much “wiggle room" there is in the matter of citizenship, in particular, what would be required to change the current constitutional guarantee of “birthright” or “feet-dry” citizenship whereby, irrespective of the immigration status of parents (legal or illegal), any child born within the jurisdiction of the United States is an American citizen. I want to make it quite clear that I have no problem whatsoever with the current paradigm of birthright citizenship. My only purpose in writing what follows is to clarify the historical and constitutional issues surrounding this contentious topic.


The reason there is no explicit definition of “citizenship” in the un-amended Constitution is because the Framers, being intimately familiar with the English legal system, implicitly appealed to the English common-law definition of “citizenship,” whereby anyone – irrespective of parentage – born within the realms of the British Sovereign was deemed to be a British subject. There were exceptions, of course. For example, children of foreign ambassadors and members of the diplomatic corps, in service to a foreign Sovereign, were not considered British subjects. Though born on British soil, such children retained their citizenship of origin. Also, members of a hostile, invading military force who had offspring born on British soil could not claim British citizenship for their children. (So, for example, children sired by members of the army led by William the Conqueror could not claim British citizenship under the regime of King Harold Godwinson … but, of course, could do so after the Norman Conquest:  nothing succeeds like success.) This is the principle of jus soli – literally, “right of soil” – and is opposed to the Roman, and generally southern European, principle of jus sanguinis – literally, “right of blood”, whereby the citizenship of children is determined by the citizenship of the parents. The United States is one of the very few nations on earth to grant unconditional citizenship – with the foregoing two exceptions – under jus soli. This common-law principle was so well understood by the men who wrote the US Constitution that it was simply tacitly assumed and so nowhere explicitly stated in the Constitution.

What necessitated an explicit statement of the principle of jus soli in the 14th Amendment was the infamous Dred Scott v. Sandford decision of the Roger Brook Taney Supreme Court in 1857. In that decision, the Court not only affirmed the constitutionality of slavery, blocked efforts to “quarantine” slavery to the States of the future Confederacy, ruled that attempts to free slaves by transporting them to free States violated the “due process” clause of the Fifth Amendment, and struck down, e.g., the Missouri Compromise, the Court also explicitly repudiated well over a thousand years of precedent under English common law by stating in the most nakedly explicit terms imaginable that African slaves were beings [note: not "human beings", just "beings," i.e., "things" -- JRC] of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect. (Note that the Dred Scott ruling, since it references only race and not condition of servitude, applied to free blacks as well as slaves.) The proximate effect – and the proximate purpose – of section 1 of the 14th Amendment was to overturn Dred Scott by declaring that, contrary to the Taney Court’s ruling, former slaves – “former” because the 13th Amendment prohibiting slavery had been passed and ratified three years earlier – as well as free Africans are indeed American citizens.

At this point, the Devil is in the details vis a vis birthright / “feet-dry” citizenship. Re-read section 1 and carefully keep track of the guarantees that are pledged to (a) “persons” and to (b) “citizens”. Rep. John Bingham of Ohio, who pretty much single-handedly crafted section 1, was a superlative attorney -- a "patriot" in the noblest sense of that term, and an unsung American hero -- with an exquisitely fine-tuned appreciation for the nuances of language. First of all note that (boldface added)


All 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.

 Note that no reference is made to the citizenship of the parents, the parents’ immigration status (legal, illegal, resident alien, etc.), but simply and purely to the place of birth of the citizenship “candidate” herself. (I leave out of consideration naturalization.) This first sentence of section 1 is a ringing re-affirmation, Taney Court notwithstanding, of the common-law principle of jus soli: except for the (implicitly) still-intact exceptions of members of the foreign service and hostile invading armies, the principle is born on American soil, therefore American citizen, full stop. The use of the generic “persons” and the absence of qualifying adjectives is critical: there are no citizenship requirements for becoming an American citizen.

(I am going to skip over the “privileges or immunities” clause that begins the second sentence. Ultimately, this makes no difference vis a vis birthright citizenship, because States are prohibited by the "Comity Clause" of Article IV, sec. 2, from discriminating against citizens of other States in terms of the exercise of fundamental rights. An excellent discussion of this is here.)

The last two clauses of the second sentence of section 1 are more germane, in any case (boldface added).

nor shall any State deprive any person of life, liberty, or property, without due process of law

 Again, note that the word “person” here is absolutely critical. This clause prohibits the deprivation of any person – implicitly “any person, irrespective of immigration or citizenship status” -- of “life, liberty, or property without due process of law”. For all practical purposes, this is where Donald Trump and the “Give ‘Em All A Sack Lunch, Herd ‘Em Onto Buses, And Head ‘Em South” school of thought regarding dealing with illegal immigration meet a common Waterloo. Section 1 of the 14th Amendment explicitly prohibits “persons” from being deprived of “liberty or property without due process”. There has to be "due process":  you do not deprive persons of "liberty", herd persons by forcing them onto buses with no hearing or legal counsel, point the bus south, and then "drop the hammer". (Nor may law enforcement stop and detain people because ... Jeez! ... they sure look Mexican! ... as was allowed, at least at one point, in Arizona. Take careful note of the "nor shall any State" locution.) How long would it take to give 11 million persons -- Mr. Trump's number, not mine -- due process? Theoretically, there might be a way around this, which I will suggest in a moment. However, actually implementing such a policy, assuming it to be possible in the first place, would quite justifiably mark the United States as a moral pariah in the eyes of the civilized world.


Equally critical is the injunction that (boldface added)

[no State shall] deny to any person within its jurisdiction the equal protection of the laws

 In 1866, two years before the 14th Amendment was ratified, Congress passed a civil rights act – now more or less forgotten – that included essentially the same language as this second sentence of section 1 of the 14th Amendment. President Andrew Johnson vetoed the Civil Rights Act of 1866, objecting that this degree of equality would entail, not only the equal protection of the law to free blacks and freed slaves, but also to people President Johnson, and many Americans, considered undesirables, e.g., in Mr. Johnson's words, "Chinese ... gypsies, ... mulattoes, persons of African blood," et al. His veto was overridden. When conjoined with the first sentence of section 1 about birthright citizenship, this third clause of the second sentence entails the conclusion that, since all are protected equally by the law, birthright citizenship applies, not only to free blacks and former slaves, but equally to any person of any racial extraction, irrespective of parentage or immigration status. All that is necessary is personhood. Period.

A natural question to ask at this point is: Well, what are the constitutional precedents for dealing with children of illegal / undocumented immigrants who are born in the US (so-called “feet dry”)? Surprising answer: there are none. To be sure, there have been many cases in which the Supreme Court has had to deal with people whose immigration status, and even whose children’s immigration status, was problematical for one reason or another. The only even remotely relevant cases we have are cases like those of US v. Wong Kim Ark and Elk v. Wilkins -- neither of which involves parents illegally in the Nation. Ark pertains to whether a man, previously a citizen under the 14th Amendment and born to Chinese parents legally residing in the Nation, could return after visiting China, despite the Chinese Exclusion Act having been passed during his absence. (The Court ruled in Ark's favor. Ark would also presumably invalidate Mr. Trump's original -- though subsequently repudiated -- advocacy of refusing re-entry even to Muslim American citizens when they leave the country ... as on a haj pilgrimage -- which would, incidentally, also be a "facial" violation of the "free exercise" clause of the First Amendment.) Elk determined that Native Americans are not citizens under the 14th Amendment, even if they leave their tribe, because they remain part of the sovereignty of the tribe, but there was no controversy about Elk's legal status. (Today, Native Americans are still citizens by virtue of statutory, not constitutional, law.) Case-law precedent will, I predict, not be much help.

However, there is an aspect of English common law as it relates to the 14th Amendment that might be relevant if the Nation is square-jawed, damn-the-torpedoes determined to abolish birthright citizenship at any and all cost:  the exception in the case of invasion. Even though born in the United States, children of invaders are not entitled to birthright citizenship. Technically, people who are here illegally are, in the most narrowly, sclerotically literal meaning of the term, "invaders". Obviously, this is a stretch. A man and his wife who cross the border illicitly with the subversive intent of picking lettuce in California or who want to terrorize suburbanites of Orange County by cleaning swimming pools for minimum wage, and who have a child while on the American side of the border, are certainly not invaders in the sense of Russian Spetsnaz troops marching down Constitution Avenue intending to pillage the National Gallery and Sculpture Garden, pausing just long enough to do lunch at the Capitol Grille. Neither is a couple who illegally cross the border from, say, Guatemala, go to UCLA Medical School, and live in the US for 30 years clandestinely subverting the integrity of the Nation by becoming respected neurosurgeons. I am a skeptic.  I am a cynic.  And damn proud of being such. Granted both, but I -- even I -- do not believe the US, not even the Trumps and Tancredos, would be that extreme, except perhaps rhetorically. (Besides, even the children of "invaders" are still persons, and therefore must be accorded due process.) In any case, before we go to such lengths to deal with the issue of illegal immigration and secure the Nation's borders -- which I concur are valid objectives -- we need to make sure that we are not allowing pathological cases like Hamdi v. Rumsfeld to stampede us into "overkilling" the problem. A more effective approach would consist of a combination of enhanced border security, penalties for businesses that knowingly employ illegal immigrants, and a true and effective "path to citizenship".

And above all, an awareness that the old cliche is true:  extreme cases make bad law.

James R. Cowles

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