It's Time to Debate Birthright Citizenship

Written by Howard Foster on Thursday January 5, 2012

Rep. Steve King (R-IA) has introduced a bill to repeal “birthright citizenship.” It’s probably the most significant immigration reform bill introduced in Congress since 1965 when nation quotas on immigration were repealed. That revision in the Immigration and Nationality Act (“INA”) significantly changed the racial and ethnic composition of the country and the number of unskilled immigrants.

Whether you believe the change has been good, or not good (my view), we can all agree that such a far-reaching change in the INA should have been the subject of vigorous two-party debate. That did not occur because the Democrats had huge majorities in both houses of Congress, Republicans did not offer a coherent opposition to the bill, and there was residual sympathy for anything originally offered by the recently assassinated JFK.

It’s time for a vigorous national debate about legal immigration without name calling, histrionics, and, unlike 1965, guided by an understanding of the Fourteenth Amendment. Let’s start with the relevant text of that post-civil War Amendment, which everyone agrees, was offered to protect and enfranchise the newly freed black slaves. It states: “All persons born or naturalized in the United States, and subject to the jurisdiction there of, are citizens of the United States…” (emphasis added) (the “Citizenship Clause”). Sen. Jacob Howard (R-MI), introduced the Citizenship Clause to the version of the Amendment which had passed the House in 1866. He stated: This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers… but will include every other class of persons.”

Senators proceeded to debate whether Indians living on reservations would be citizens. Sen. Lyman Trumbill (R-IL), Chairman of the Judiciary Committee, answered that they would not be citizens because of the phrase “and subject to the jurisdiction thereof” of the Citizenship clause. “That means  subject to the complete jurisdiction thereof… not owing allegiance to anybody else.” There was some discussion about whether “gypsies” and legal Chinese immigrants in California would be covered by the Citiizenship Clause. Sen. Howard indicated they would be.

I don’t think there is any way to interpret the original intent of the Citizenship Clause as applying to the children of illegal immigrants. No member of Congress expressed such a view. And my opinion is supported by the second sentence of Sec. 1 of the amendment which expressly provided that the states had to give equal protection of the law to “any person within its jurisdiction,” a broader guaranty than that expressed in the Citizenship Clause. So the Senate was creating two levels of rights for two different classes, citizens and equal protection for everyone including aliens.

The Supreme Court interpreted the Citizenship Clause as requiring “consent” of the U.S. government. So, an Indian wanting to register to vote in Omaha, Nebraska was properly denied the franchise even though he was born in the state. According to the Court, birth was insufficient. Because he was born on an Indian reservation, he needed to become naturalized in order to obtain citizenship. Elk v. Wilkins, 112 U.S. 94, 103 (1884). Thus, the concept of “citizenship” also included sole political allegiance.

However, in 1898 the Supreme Court changed course. In a controversial decision written by Justice Gray, who had written the Elk opinion, the Court held the child of legal Chinese immigrants born in the U.S. was a U.S. citizen. The decision limited the “subject to the jurisdiction thereof” phrase of the Citizenship Clause to foreign diplomats and persons at war with the U.S. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). It must be pointed out that neither Mr. Ark nor his Chinese-born parents were in the country illegally. It must also be noted that there was no statutory change in U.S. immigration law between the Elk and Wong Kim Ark decisions that may have changed the Court’s analysis. The fundamental flaw in the reasoning is that the Supreme Court is supposed to adhere to its prior decisions, a principle known as stare decisis. Supporters of Roe v. Wade like to bring this up whenever a new Supreme Court justice is nominated. Justice Gray should have followed his own analysis from Elk. Instead, he settled on a meaning of the word “jurisdiction” (which has several meanings in the law) from an admiralty case from 1812, 54 years before the 14th Amendment was written. That admiralty case held that a particular vessel was under U.S. jurisdiction by virtue of being in U.S. territorial waters.

Justice Gray also made the incorrect conclusion that the United States had always adhered to the rule of birthright citizenship. But the very first naturalization statute, enacted in 1790, allowed only “free white” people to become citizens. em>< 654. And the law in effect at the time of the decision allowed birthright citizenship only when the father was a U.S. citizen. Id. at 674. Justice Gray also stated that the American colonies and states adhered to a policy of “birthright citizenship.” Yet his research failed to cite any precedent from any state court agreeing with that view. Id. at 682. Needless to say, there was a vigorous dissent written by Justice Fuller. His most compelling point, and one completely overlooked by the majority, was that under the English common law, there was a distinction between the law of domicile which was decided by where one’s birth and the law of allegiance, based upon nationality. The concept of American citizenship was a hybrid of the two, as expressed inElk. And if this was the correct view of the law then Justice Gray made a tremendous error.

More recently the Supreme Court has held that the equal protection clause of the 14th Amendment applied to the children of illegal immigrants. Plyler v. Doe, 457 U.S. 202 (1982). The 5-4 majority struck down a Texas law that withheld public education funding for the children of illegal immigrants. But the Court did not hold they were citizens.

All of this brings me back to the INA. Does the law provide for birthright citizenship? The answer is ambiguous. 8 U.S.C. 1401(a) simply provides that a person born in the U.S. “and subject to the jurisdiction thereof” is a citizen and national of the U.S. But the INA does not define “subject to the jurisdiction thereof.” Under the Wong Kim Ark interpretation of that phrase, children of illegal immigrants might be citizens, and certainly a lawyer can make a strong argument that they are. But I’ve made the contrary argument here, and it is not frivolous. Certainly, we would benefit from revising that INA to clearly define citizenship. I think Rep. King and his 80 co-sponsors are correct in doing away with birthright citizenship. The only other country having such a rule outside the third world is Canada. The U.K., France, Australia, New Zealand, Ireland, and India have repealed birthright citizenship in the last 30 years as immigration has increased. According to the Rasmussen poll of likely voters, 65% favor repeal. Birthright citizenship is a magnet for illegal immigrants. This costs the taxpayers billions of dollars each year just in paying for illegal immigrant births in hospitals, which as I’ve written here, are barred under another federal law from turning anyone away from their emergency rooms if they want Medicare funding.

It’s time for a robust and civil debate in Congress.