By Professor Victor M. Goode
Shortly after a federal court judge stayed some of the more controversial portions of Arizona’s SB 1070 immigration law, a new line of attack on immigration policy emerged. This new assault seeks to have the children of undocumented immigrant parents who are born in the US declared ineligible for citizenship despite the “birthright provision” of the 14th Amendment. Some conservative members of Congress agree, claiming that the clause, which provides for automatic citizenship for those born in the United States, has been misapplied and must be corrected either by the courts or by legislation.
The language of the clause in question states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside.” Despite the plain wording of this provision, its critics argue that an examination of the Congressional Record reveals that it was never intended to apply to the children of “undocumented immigrants” even if they are born in the United States.
When debating the proposed language of the amendment, its author Senator Jacob Howard of Michigan said that the provision would not grant citizenship to “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Critics of our current immigration policy have focused on this statement arguing that the words “foreigners” and “aliens” is further proof that the framers of the amendment never intended it to grant automatic citizenship to the children of undocumented persons who do not have permanent resident status.
They argue that the citizenship sentence must be taken apart to discern its real meaning. The phrase “subject to the jurisdiction thereof…” means that one has complied with all the conditions and requirements of U.S. law. A person who has entered the country illegally by definition fails this requirement and their children therefore cannot qualify for the right of citizenship by birth.
The fallacies of this argument are obvious and numerous. This line of reasoning does not clarify our understanding of the Constitution, but rather adds to the continuing assault on immigrants, this time by questioning the citizenship status of their children who are born here. Original intent is certainly one among several theories used by courts in interpreting the Constitution. But the critics of the birthright clause seek to resurrect an argument that has been settled for over a hundred years. In doing so they ignore the role that race has played in influencing our country’s approach to immigration and citizenship and allow an important policy debate to occur within the shadow of racial bias.
In 1790 Congress passed the first statute concerning naturalization which limited the ability to become a citizen to “white persons.” Act of March 26, 1790, ch. 3, Stat. 103 This act was just the beginning of our long history of racializing citizenship and immigration. Prior to 1868 by law and practice, citizenship was granted by the common law principle of jus soli, meaning place of birth. This tradition predates our Constitution and was derived from British common law. Some scholars suggest that this settled principle is one reason why our original constitution made no mention of who could be a citizen or under what conditions. The practice of jus soli seemed legally settled in the early part of the 19th century, but questions surfaced when slavery began to move west. Justice Roger B. Taney sought to resolve the issue when in 1856 in the case of Scott v. Sanford he declared that Africans, free or slave were not citizens of the United States and could never be citizens because they were “a subordinate and inferior class of beings” and the framers never contemplated that they would ever be part of the political community. Dred Scott v. Sanford, 60 U.S. 393, 411 (1856).
In 1865 the Thirteenth Amendment was enacted abolishing slavery, but the citizenship status of these newly freed Africans remained in limbo. They were not Indians, who were referred to in the Constitution as a separate nationality, but neither were they immigrants or citizens. Congress responded with the Civil Rights Act of 1866. It called for equal treatment of blacks and contained language that was almost identical to what would become the birthright clause of the 14th Amendment. In the debates on the Civil Rights Act Congressman Wilson, chairman of the House Judiciary Committee, stated that under the bill, as before, “Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen of the Constitution.” “The Nephews of Uncle Sam: The History, Evolution and Application of Birthright Citizenship in The United States,” by Jonathan C. Drimmer, 9 Geo. Immigr. L.J. 667, 1995. The clear intent of the Act was to vest the newly freed slaves with both national and state citizenship. Some proponents of the Act went on to say that this language was uncontroversial because it merely restated a common law tradition. There is also evidence from the debates over the 14th Amendment that some Senators supported the “birthright” provision on the belief that they were simply codifying this long recognized principle of jus soli.
In 1898 in the case of in United States v. Wong Kim Ark, 169 U.S. 649 (1898) the Supreme Court reviewed the citizenship by birth clause and held that a child born in the U.S. to resident alien parents is entitled to birthright citizenship under the 14th Amendment. Critics of the birthright clause argue that since Wong Kim’s parents were legal residents of the U.S. that the status of children of the undocumented was never resolved. But this interpretation ignores the lengthy analysis that the Court gave to the meaning of that clause in the 14th Amendment. The Court began by giving a comprehensive review of the legal history of citizenship in the U.S., both before and after the passage of the 14th Amendment. It stated “There is, therefore, little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of international law… inconsistent with the ancient rule of citizenship by birth within the dominion.” Wong Kim Arc at 667.
The controversy over Wong Kim’s citizenship only occurred because of his race. The immigration authorities conceded that Wong Kim had been born in San Francisco. But when he traveled to China on business and attempted to return to the U.S. he was refused entry. The U.S. Attorney intervened in the case arguing that “the said Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of [C]ongress, known as the ‘Chinese Exclusion Acts’, which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”
The Court rejected this argument declaring that:
The fourteenth amendment of the constitution, in the declaration that ‘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,’ contemplates two sources of citizenship, and two only,-birth and naturalization…citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. (Emphasis added) A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty… or as in the ordinary provisions of the naturalization acts.
While the holding in Wong Kim Ark reflected the narrow issues stated in the pleadings, including the fact that Wong Kim’s parents had entered the United States legally, this fact was not the focus of the Court’s analysis. The Court’s reasoning was focused on one issue: was Wong Kim a citizen by virtue of being born in the United States? The court concluded that he was.
Later cases such as Plyler v. Doe, 457 U.S. 202 (1982) relied on the reasoning from Wong Kim Ark concerning birthright citizenship. The Ninth Circuit in the case, Rabang v. Immigration and Naturalization Service, 35 F.3d 1449 (9th Cir. 1994), held that the Court’s review of the citizenship clause in Wong Kim Ark was dicta. But this one circuit’s reservation was based on the fact that the petitioners in Rabang were born in a US controlled territory, not the United States. Despite this case the clear meaning of the language of the amendment coupled with the Court’s detailed analysis of the clause in Wong Kim Ark clearly supports the conclusion that children born in the United States, even from undocumented immigrants, are citizens.
In the shadow of this controversy over the meaning of the 14th Amendment is the ever-present tension between America’s democratic ideals and its long history of racial bias in immigration policy. Even after the passage of the 14th Amendment, Native American children, while subject to U.S. jurisdiction, were typically declared members of a separate racial and national group and therefore not eligible for citizenship, despite place of birth. Asians were for years denied the opportunity even to seek citizenship and for a period were barred from even entering the country. Birthright citizenship was not fully recognized as applying to all native peoples within the United States until 1940. While African Americans gained citizenship through the 14th Amendment, the same court that decided Wonk Kim Ark quickly limited those rights with the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896).
Following the Spanish American War when America expanded its empire residents of these new United States territories asked courts whether they were now citizens, since they were clearly “subject to the jurisdiction” of the United States. With few exceptions the answer was a resounding “no.” In rejecting these claims, courts often referred to Filipinos, Puerto Ricans and Pacific Islanders as unqualified for citizenship in the same racially derogatory terms as they had referred to blacks at the time of the Dred Scott case. See Drimmer, 686-694 and 704-707.
Since 1965, there have been many reforms in our immigration policy. The more pernicious references to race have disappeared, but some of the anger over birthright citizenship today is being fueled by fears over our rapidly growing Latino and Asian populations and sadly, is reminiscent of the reactions that led to the Wong Kim case.
It is unclear where this current controversy will lead ultimately. Legislation to restrict the birthright clause was introduced in Congress in 1993, but never made it out of committee. But new bills have surfaced in several committees since 2005 and with a new political majority in the House, they may gain more support. There are, of course, valid concerns over our present immigration policy that should be debated and race is certainly not the only motivating factor among those seeking change. But it would be a mistake to ignore the role that race has historically played in this debate, especially over language in a clause whose meaning has long been settled. It is only by bringing these issues to the foreground in a clear and honest way that we can have the kind of discussion about immigration policy that the country deserves.
Professor Victor M. Goode is an Associate Professor of Law at the City University School of Law in New York. This article is an adaptation of a piece published by Colorlines.
