Wednesday, August 11, 2010

Birthright Citizenship and the 14th Amendment: Part I

It's hard to believe that as midterm elections are slowly coming into view that Republican leaders, particularly those in Congress, have chosen birthright citizenship as the evil of the day, as opposed to the near 10% unemployment rate or anything else of merit to talk about.  I'm also miffed that Lindsey Graham, the Republican Senator from South Carolina is apparently one of this movement's leaders.  I've long regarded Senator Graham as a serious legislator; a Senator who tries hard to find the right mix between a politics of cynicism and principle. I can understand why he may be frustrated by our collective inability to find a legislative compromise of comprehensive immigration reform.  I can understand also why he may feel politically vulnerable.  (Though I cannot understand, if he feels so politically vulnerable, why he would vote to confirm Elena Kagan and make-up for past political transgressions(?) by taking up this birthright citizenship issue.  If you're going to take a stand on principle, then be consistently principled, especially about the things that really matter.)   And like President Obama, perhaps he does not get enough credit for reaching out across the political chasm and for his legislative achievements.  But this?  This?

To better understand what "this" is.  Let me give a little bit of background on the legal cases that have dealt with birthright citizenship.  Other bloggers have focused on the history of the 14th Amendment (see for example the usually insightful Sherrilyn Ifill here).  So, for the benefit of our non-legal readers, I will focus on the cases themselves, starting in this post with the central case.

The most significant case is United States v. Wong Kim Ark, 169 U.S. 649 (1898).  The facts of the  case are fairly simple.  Mr. Wong Kim Ark was born in the United States to parents who were Chinese nationals but legal United States residents. In 1894, he left the U.S. for a brief visit to China and was not allowed back in on the ground that he was not a United States citizen.  This was not the first time he had left the U.S. for a visit to China, but it was the first time he was denied re-entry.

Congress had passed the Chinese Exclusion Act, which denied anyone of Chinese descent entry to the United States.  Wong Kim Ark argued that the statute was unconstitutional in violation of the 14th Amendment.    The 14th Amendment provides in relevant part that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside."  The United States argued that because Mr. Wong's parents not citizens of the United and therefore "subject to the jurisdiction" of China, Mr. Wong was not a "natural born" citizen as that term is used in the 14th Amendment. Mr. Wong argued that by being born in the United States he was a natural born citizen and the phrase "subject to the jurisdiction thereof" only meant to exclude children of foreign diplomats born in the United States.  Because he was not a child of foreign diplomats, the exclusion did not apply to him.

Thus, the issue to be decided in the case was "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 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 by virtue of the first clause of the fourteenth amendment of the constitution."

The Court agreed with Mr. Wong and rejected the United States' argument.  Surveying English common law, European law, and domestic statutes, the Court concluded that the prevailing understanding at the time that the 14th Amendment was adopted was that "all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth."

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