Nature abhors a vacuum. If nothing is done to address a serious and festering issue, it is certain that something or someone will step in to fill that void. And the solution that’s implemented won’t be universally popular or precise. Such is the case with comprehensive immigration reform. Not addressing the thorny issue has caused it to morph into a power struggle to create a wide range of changes that seek to reshape not only immigration, but the tide of demographic changes in America – beginning with questioning the meaning of a Constitutional amendment.
Until this year it could be argued that the 14th Amendment wasn’t on anyone’s radar screen. It was just one of those clauses that serve as part of the framework of our democracy. And it also could be argued that what we view as “norms” that we take for granted in our day to day lives are grounded in Constitutional text. One of those norms is what is required to be a citizen of this country. Rarely do we question these norms – until now. And that’s how we have come to know and question the 14th Amendment.
President Donald Trump triggered the national conversation with his announced intention of ending birthright citizenship – the language of the 14 Amendment that says: “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.” – with one of his executive orders.
Trump told AXIOS reporter Jonathan Swan that the United States was the only country in the world with birthright citizenship. In reality, 30 other countries do offer birthright citizenship. While Trump contends that he has the executive authority to end birthright citizenship, the matter is far from settled law and is sure to be decided by the Supreme Court.
Once it is brought to the Supreme Court, the Justices would have to examine one hundred years of precedent and cases related to the application of the 14th Amendment.
The History
Marco Ugarte from The Associated Press recently presented a brief legal history of the 14th Amendment on how we got here. “Prior to the 14th Amendment’s ratification in 1868, the Constitution was silent on the question of citizenship. It did give Congress the power to legislate how non-citizens could be naturalized,” Ugarte explains. “The amendment was passed and ratified in the wake of the Civil War. Slavery had been abolished by the 13th Amendment, but former slaves born in the United States and their children, born free or otherwise, were not guaranteed citizenship. Many states, even some Union ‘free’ states, did not extend citizenship to blacks and other nonwhites.”
He goes on to note that even after it was passed, the language of the amendment invited questions and future litigation. The main sticking point was defining the phrase “all persons born or naturalized in the United States and subject to the jurisdiction thereof.” What did it mean to be subject to the jurisdiction and who is included or not included in this description?
Ugarte says, “For several decades ‘all persons’ didn’t mean everyone. Most American Indians, for example, were not granted citizenship until a 1924 act of Congress because they were subject to tribal jurisdiction. The children born here of ambassadors are not citizens because their parents are not subject to U.S. law.”
Dara Lind, from Vox.com notes the significance of 1868 as the year the amendment was ratified. She says that is was, “primarily intended to nullify the Supreme Court’s infamous 1857 ruling in Dred Scott v. Sandford, which ruled that no African-American could become a citizen, regardless of their status at birth. Without the guarantee of citizenship, black Americans had lacked clear rights to own property, move freely, or even remain in the United States – ‘colonization societies’ raised money for the mass deportation of former slaves to Africa, a continent their ancestors had left generations before. The 14th Amendment offered them a legally secure position in the United States for the first time.”
It should be noted that Congress didn’t set out to amend the Constitution to remedy the grave injustice of the Dred Scott ruling ten years earlier. According to constitutional scholar Linda Monk, Congress penned a bill in 1866 that would guarantee birthright citizenship to everyone “not subject to any foreign power, excluding [Native Americans who are] not taxed.” The bill hit a major snag when it reached the desk of President Andrew Johnson. He decided to veto it because he was not in favor of immigrants including Chinese Americans and what he called “gypsies” being recognized as citizens, as well as black Americans. However, Congress was able to override the veto, and also passed the constitutional amendment.
It was then left to the Supreme Court to make sense of the amendment language in cases that would come before them. And they got their first opportunity to do so just five years later in 1873. At first, the Justices applied a narrow interpretation to the citizenship clause of the 14th Amendment.
In the Slaughter-House Cases, 83 U.S. 36 (1873) a majority of the Supreme Court decided that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Eleven years later the Court further narrowed the definition of citizenship. In Elk v. Wilkins, 112 U.S. 94 (1884) the Justices denied the birthright citizenship claim of a Native American, ruling that merely being born in the territory of the United States does not necessarily bestow citizenship. The Justices ruled that than the children of Native Americans were no more “born in the United States and subject to the jurisdiction thereof,” than the children born within the United States of ambassadors or other public ministers of foreign nations. Native Americans, they found, were subject to the laws of their tribe rather than the laws of the jurisdiction of the United States. It took an act of Congress in 1924 (The Indian Citizenship Act) to formally grant all Native Americans citizenship and void the Elk ruling.
Fourteen years later, in the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898) the Supreme Court had to decide the legal citizenship of someone born in the United States to parents of Chinese descent, subjects of the Emperor of China, but have a permanent home in the U.S. where they conduct business. The parents were not diplomats or employees of China, so a previous ruling did not apply to them. Wong Kim Ark, the plaintiff, was born in San Francisco, visited China and was refused entry when he tried to come back to the United States. He argued he was a U.S. citizen, but the federal government countered that American born Chinese were not citizens unless their parents were and couldn’t become citizens. In a 6 to 2 decision, the Supreme Court sided with the plaintiff ruling that, “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country… His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.”
As explicit as the Wong Kim Ark decision had seemed for more than 100 years, advocates for narrowing the scope of the 14th Amendment say that it is unclear that conferring birthright citizenship is not absolute. As Ugarte points out, “While the Supreme Court has ruled a child born here to immigrant parents in the country legally is a citizen, it has not specifically ruled on the question of birthright citizenship for the children of illegal immigrants.”
In “Birthright Citizenship, Explained,” Vox’s Dara Lind notes that, “The Supreme Court hasn’t explicitly ruled that the children of unauthorized immigrants are U.S. citizens. In the 1985 case INS v. Rios-Pineda, in which the parent of two U.S.-born children challenged his deportation order, the Court referred to the children as U.S. citizens by birth – but because the Court didn’t make a formal legal finding in this regard, the statement was just dicta, or rhetoric.”
The big question is whether the offspring of someone without legal right to be in the United States is endowed with automatic U.S. citizenship status. The argument is that if a person is here illegally, they have affirmatively excluded themselves from being subject to the jurisdiction of the United States. The argument for including the offspring of the undocumented on citizenship rolls compares them to Native Americans. The undocumented still subject themselves to the law of the land, they pay taxes, and they contribute to the fabric of society.
Some of those who oppose placing limits on or eliminating the 14th Amendment sees a sinister underpinning to the historical record of challenging citizenship rights in the Supreme Court. After the administration announced the intent to limit the 14th Amendment, the group, Asian Americans Advancing Justice released this statement: “From the Chinese Exclusion Act to the current Muslim Ban and repeated attacks on immigrants, the attempt to end birthright citizenship is a core part of a white nationalist agenda to define citizenship as white and cast out all people of color.”
At its essence the Asian Americans Advancing Justice has a point when they indicate that this effort to limit birthright citizenship is not new. And, yes, it is an applause line for every white nationalist rally. It is also a legitimate subject for political debate. In 1995, the former head of the White House Office of legal Counsel Walter Dellinger was called before Congress for a panel to discuss what our forefathers envisioned as requirements for citizenship. Before the 14th Amendment was enacted, the Constitution list qualifications for citizenship. He explained that the language of the document reads, “every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel.”
Proving that there is nothing new under the sun, the 1995 hearing was conducted during a time when the GOP controlled both houses of Congress, and they were attempting to amend the Immigration and Nationality Act to exclude the children of undocumented immigrants from the right to automatic citizenship if born in the United States. This is basically what the Trump administration is promising to do by executive order. In 1995, the bills in both houses never made it out of their committees. It should also be noted that the failure to move these bills in 1995 did not deter politicians from persisting. Similar legislation has been proposed for the past 11 years but have never reached the floor for a vote.
As Pamela Falk reported for CBS News, “Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit, a Trump appointee, said that efforts to rewrite U.S. citizenship law without a constitutional amendment are a losing court battle, writing in 2006 that birthright citizenship is guaranteed to ‘descendants of Mayflower passengers’ as it is to ‘children of undocumented workers.’”
Falk also cites a former director of the public liaison office in the Reagan White House, Linda Chavez who wrote in a 2010 Wall Street Journal op-ed: “Conservatives should not betray these values based on a misreading of American history and legal precedent. Instead of amending the Constitution to eliminate ‘anchor babies’ – the ugly term opponents of birthright citizenship use to describe these U.S. citizens – Republicans should be helping them become good Americans.”
As Falk suggests, this might be more about politics than an urgent need for policy change, explaining, “As to the political realities, the number of babies born to unauthorized immigrant parents in the U.S. fell to 250,000 in 2016, the lowest figure since 2000.”
Imagine if the revoking of birthright citizenship happened, and it was retroactively applied. It made me think about my own ancestry. My grandfather came to America from Italy on one of the big ships that deposited masses of immigrants on Ellis Island. He feared he would be turned away and jumped ship before the ship docked there. He is not listed on Ellis Island’s registry. In essence, he was undocumented. Taking this to the extreme, in theory, that would make my father ineligible for birthright citizenship and by extension, me, as well, and my daughter.
Would we all become investors in Ancestry.com kits to bring a whole new meaning to the term, “show me your papers?” What we know is that at the core of the raging debate about birthright citizenship is the appalling lack of urgency by our elected officials to address immigration reform.
Eldridge Cleaver once said, “You’re either part of the solution or part of the problem.” Without comprehensive and fair immigration reform that reflects rather than betrays the values of our Constitution, reveres our proud heritage as a nation of immigrants and honors the words engraved on the base of the Statue of Liberty, those we have elected to represent us are sadly part of the problem. •
Sources for main story and sidebars: Marco Ugarte/AP, Asian Americans Advancing Justice, Migration Policy Institute, Pamela Falk - CBS News, Kevin Sieff - The Washington Post, National Public Radio, Tom Gjelten, Jonathan Swan - AXIOS, U.S. News & World Report, Dora Lind - VOX, Slate Magazine, Mother Jones Magazine, M. Moskowitz - New York Immigration Coalition.
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