Legal Commentary

Getting It Right On Birthright Citizenship

By Big Tent Democrat

I was on a conference call organized by the Immigration Policy Center titled "The 14th Amendment and Birthright Citizenship, Discussing the History and Ramifications of Amending the Constitution." Good background link here. The panelists were Michele Waslin, Senior Policy Analyst, Immigration Policy Center (Moderator), Margaret Stock, Attorney and Retired Lieutenant Colonel, Military Police Corps, US Army Reserve, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Eric Ward, National Field Director, Center for New Community, and Bill Hing, Professor of Law at University of San Francisco.

It was a good overview and the discussion was both policy based and a review of the relevant law. On the case law, of course the starting point is the 1897 case, US v. Wong Kim Ark. Also discussed was the legislative history of the 14th Amendment. A good article on that is here. I asked two questions - one was about Wong Kim Ark and its discussion of birthright citizenship as, not only being enshrined by the 14th Amendment, but also by the Constitution itself. To wit, the birthright citizenship language of the 14th Amendment was only necessary because Dred Scott put it in doubt. My second question was directed at some misinformation on the subject disseminated last night on Keith Olbermann's show by Professor Jonathan Turley:

OLBERMANN: What is the—what are the implications—are there precedents, in fact, in that Senate debate that we quoted from, when which the senator from California was asked, does that mean the son of the Chinese immigrant is an American, and he went, yes. Does that—does that have legal standing? Does the fact that the debate that preceded the 14th Amendment is clear and recorded—does that mean anything in this equation?

TURLEY: Well, it does. Now, to be fair to the other side, there have been academics that have argued that those debates have senators saying quite the opposite. And most importantly, Jacob Howard, who was author of the amendment, makes a statement on the floor where he says, this would exclude foreigners and aliens. So, the legislative history is very, very mixed in terms of what their—what the meaning was. But you also have to remember, the 14th Amendment, it wasn‘t simply after Dred Scott, to reverse that horrible decision—but it also came as a response to what were called the black codes, which are enacted in the South. And these referenced to disenfranchised blacks, and that analogy could be made in many ways to the illegal immigrants.

But the Supreme Court itself in the Plyler v. Doe case that I mentioned earlier, it strongly suggested that their view was that the language of the 14th Amendment did embrace the children of illegal aliens.

Perhaps Turley was nervous or not as prepared as he would have wanted to be, but he is simply incorrect here. Regarding the legislative history, Turley is simply wrong. And indeed, Turley's failure to mention the Wong Kim Ark speaks to his unfamiliarity with the subject matter. In Wong Kim Ark, the Supreme Court not only addressed the issues of the legislative history of birthright citizenship in the 14th Amendment, but discussed it from its English common law roots and understanding and inclusion in the original Constitution.

Another good source for information on the legislative history is this article:

The Citizenship Clause was no legal in­novation. It simply restored the longstand­ing English common law doctrine of jus soli, or citizenship by place of birth. Although the doctrine was initially embraced in early American jurisprudence, the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizen­ship to the descendents of slaves. Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law. [. . . ] Senator Jacob Howard [(R-MI)]’s brief introduction of his amendment confirmed its plain mean­ing:

Mr. HOWARD. … 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 accredited to the Gov­ernment of the United States, but will in­clude every other class of persons.”

This understanding was universally ad­opted by other Senators. Howard’s col­leagues vigorously debated the wisdom of his amendment – indeed, some opposed it pre­cisely because they opposed extending birth­right citizenship to the children of aliens of different races. But no Senator disputed the meaning of the amendment with respect to alien children.

Senator Edgar Cowan (R-PA)—who would later vote against the entire consti­tutional amendment anyway—was the first to speak in opposition to extending birth­right citizenship to the children of foreign­ers. Cowan declared that, “if [a state] were overrun by another and a different race, it would have the right to absolutely expel them.” He feared that the Howard amend­ment would effectively deprive states of the authority to expel persons of different races—in particular, the Gypsies in his home state of Pennsylvania and the Chinese in Califor­nia—by granting their children citizenship and thereby enabling foreign populations to overrun the country. Cowan objected espe­cially to granting birthright citizenship to the children of aliens who “owe [the U.S.] no allegiance [and] who pretend to owe none,” and to those who regularly commit “trespass” within the U.S.

In response, proponents of the Howard amendment endorsed Cowan’s interpreta­tion. Senator John Conness (R-CA) re­sponded specifically to Cowan’s concerns about extending birthright citizenship to the children of Chinese immigrants:

The proposition before us … relates simply in that respect to the children begotten of Chinese parents in Califor­nia, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian par­ents shall be declared by the Constitu­tion of the United States to be entitled to civil rights and to equal protection before the law with others.

Conness acknowledged Cowan’s dire pre­dictions of foreign overpopulation, but ex­plained that, although legally correct, Cow­an’s parade of horribles would not be real­ized, because most Chinese would not take advantage of such rights although entitled to them. He noted that most Chinese work and then return to their home country, rather than start families in the U.S. Con­ness thus concluded that, if Cowan “knew as much of the Chinese and their habits as he professes to do of the Gypsies, … he would not be alarmed.”

No Senator took issue with the consensus interpretation adopted by Howard, Cowan, and Conness. [. . .]

Speaking for me only

Full post as published by TalkLeft on August 04, 2010 (boomark / email).