Skip to main content

Birthright Citizenship--Whack-a-Mole Starts All Over Again in the Senate

Like the proverbial Whack-A-Mole game of our youthful carnival weekends, the anti-immigration crowd once again trumpets this unicorn as a solution to America’s undocumented immigration problem. Most recently Louisiana Senator David Vitter (he of prostitute fame) seeks to eliminate what some call “birthright” citizenship.

 I have blogged on this before, because this issue pops up each year, usually with a politician facing a primary, as a way to gin up support from the margins of the GOP. "Birthright citizenship" is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that a U.S. born child who is born of a mother or a father who are NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States.

Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth (such as, we never actually landed on the moon). 

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my office lobby. As noted in Wikipedia: 
This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants,slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.
The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens. 
So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard. 

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866: 
to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42. See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases).
Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. 

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether: 
a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 
Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens. 

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birthe rmovement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Comments

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America.
The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds.
Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups:
Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans), we strongly rec…
Si usted es inmigrante (incluso un ciudadano de los EE.UU.), aquí hay 9 cosas que usted debe saber.

¿Es usted un ciudadano estadounidense naturalizado, residente legal permanente, titular de una visa o inmigrante indocumentado? Le recomendamos que tome los siguientes pasos para protegerse de nuestra versión actual de América.
Las últimas semanas hemos recordado a los inmigrantes, incluso a los ciudadanos estadounidenses naturalizados, que no nacieron en los Estados Unidos. Nuestra oficina ha recibido innumerables llamadas telefónicas, mensajes de correo electrónico y mensajes de medios sociales de personas preocupadas por el futuro de su familia en los Estados Unidos.
La mayoría de gente quiere saber qué puede hacer ahora para protegerse de lo que promete ser una ola de actividad anti-inmigración por parte del gobierno federal. La orden ejecutiva de Trump sobre la aplicación de la ley interior tiene algunas disposiciones que deberían hacer temblar a la mayoría de los estadounidenses. …

The DOJ Raised The Penalty Fee for Immigration Law Violations--Including Employer Sanctions

The Department of Justice announced an increase in fines for violations of the Immigration and Nationality Act, as the pertain to those sections that account for fraud, document abuse, and unfair immigration-related employment practices. While this is only an adjustment for inflation, it brings home the point that that poorly or incorrectly completing immigration forms, like the Form I-9, can lead to very costly fines from ICE and the Immigration Court. If you have any questions or concerns about I-9s in your company, please call the attorneys and Kuck Immigration Partners.  We have decades of experience representing employers in the ICE and DOL immigration investigations.  You can reach us at 404-816-8611 or at ckuck@Immigration.net.  




U.S.C. citation

Name/description

CFR citation DOJ penalty assessed after 8/1/2016 ($) 1 DOJ penalty assessed after 2/3/2017 ($) 2 8 U.S.C.     IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against).     …