TPM Cafe: Opinion

America Has Freaked Out Over Birthright Citizenship For Centuries

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The original Constitution said nothing about who was a U.S. citizen. It gave Congress the power, exclusive of the states, to grant citizenship by naturalization, but it neither addressed the requirements for naturalization nor described the legal status of those obtaining naturalized citizenship. In 1790, Congress linked race to citizenship by allowing only “free white persons” to naturalize; racial restrictions of one kind or another were in effect continuously until 1952. The Constitution also provided that only a “natural-born citizen” could be elected president, but here too, the document failed to explain who was a natural-born citizen, leading to repeated controversies about the eligibility of candidates born out of the United States, such as John McCain, George Romney and Ted Cruz.

And yet, even in the earliest days of the Republic, there must have been U.S. citizens. As the Supreme Court and other courts recognized, U.S. citizenship was granted by unwritten law. As a “common law” legal principle, in general, children born in the United States were citizens. However, because the rule was unwritten, its precise contours were debatable. The Supreme Court’s notorious Dred Scott case, decided in 1857, turned on the majority’s conclusion that a person of African ancestry was not a U.S. citizen, even though born here. The Court essentially found an unwritten exception to the unwritten law—namely, that it benefited only whites.

Dred Scott was overruled by the Civil War. First in the Civil Rights Act of 1866, and then in the Fourteenth Amendment in 1868, Congress extended citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The second clause retained the traditional denial of birthright citizenship to children of foreign diplomats and enemy soldiers. The first clause rejected the Dred Scott Court’s reasoning and result.

After the Fourteenth Amendment, African-Americans born in the United States were technically citizens, but controversies remained. In Elk v. Wilkins, an 1884 decision, the Court determined that Indians who were members of tribes were not “subject to the jurisdiction” of the United States, and therefore were not birthright citizens. While in 1924 Congress granted citizenship to all Indians who did not already have it, Elk v. Wilkins leaves open the argument that even Indians born in the United States are ineligible to the presidency, because they are mere naturalized citizens.

The status of Chinese children born in the United States was also up for debate. The Fourteenth Amendment assumed that Chinese children would be birthright citizens. But the Chinese Exclusion Act of 1882 both reflected a general anti-Chinese policy and contained a specific prohibition on naturalizing Chinese people. Accordingly, the U.S. Department of Justice fought to persuade the Supreme Court that Chinese children born in the U.S. were not citizens; because China recognized the children as its own citizens, the children were not fully “subject to the jurisdiction” of the United States.

In United States v. Wong Kim Ark, decided in 1898, the Supreme Court rejected the argument, 6-2. The opinion noted that the effect of the proposal “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” The dissent insisted that the government has “the power, notwithstanding the fourteenth amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens.”

As the United States acquired an overseas empire, the question arose yet again. This time it was about the citizenship of children born in U.S.-controlled lands. A series of decisions issued around the turn of the 20th century called the Insular Cases frankly recognized that some non-white races were unprepared to handle the full array of constitutional rights. Accordingly, the Supreme Court held that the “United States” for constitutional purposes, including the citizenship clause of the Fourteenth Amendment, did not include territory acquired by the United States unless it had been “incorporated” into the United States as part of the nation.

This meant Barry Goldwater, born in the Arizona Territory in 1909, was a birthright citizen because the territory was a permanent part of the United States even though statehood came only in 1912. But John McCain was born in the Canal Zone, a mere possession (as illustrated by the fact that it was ultimately returned to Panama). Accordingly, Senator McCain was a citizen if and only if a law made him one (which, I argue here, happened only eleven months after he was born.)

Based on the Insular Cases, children born in Guam, Puerto Rico, the U.S. Virgin Islands and the Philippines were in a twilight status, not citizens, because not born in the United States as such, but not aliens, because not born in the territory of a foreign nation. Congress ultimately granted full citizenship to the first three. By contrast, the connection of Filipinos to the United States was severed.

During World War II, U.S. Webb, who had just completed almost 40 years of service as California’s Attorney General, brought suit in federal court seeking to overrule Wong Kim Ark, at least as to Japanese people born in the United States. The lower federal courts ruled against Webb, and the Supreme Court declined to hear the case.

In the 1980s, the question of birthright citizenship began to take a similar shape as the “anchor baby” panic we see today. In their influential 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity scholars Peter Schuck and Rogers Smith argued that Congress could deny birthright citizenship to the children of unauthorized migrants, noting that Wong Kim Ark involved the child of lawfully admitted noncitizens. Both opposed the idea as a matter of policy.

Many scholars, myself included, believe their argument has been definitively debunked. There was virtually no federal immigration law in 1868. The Fourteenth Amendment can’t have been silently limited to the children of immigrants who were here with federal authorization, because that category simply did not exist at the time.

Not only that, the Fourteenth Amendment was clearly intended to grant citizenship to the single class of unauthorized migrants which did exist: namely, the children of slaves brought to the United States in violation of the federal law prohibiting the slave trade. A far better reading is that the amendment means what it says.

Still, lawmakers and activists still invoke Citizenship Without Consent to support proposed statutes or constitutional amendments to restrict birthright citizenship. In the 1990s, Representative Elton Gallegly introduced a number of bills to enact a law or amend the Constitution, and the 1996 Republican Platform contained a plank restricting birthright citizenship.

The latest dustup over birthright citizenship started in the latter part of the aughts, along with anti-immigrant measures such as Arizona’s SB 1070, intended to give states a larger role in immigration enforcement. Activists such as law professor John Eastman and Kansas Secretary of State Kris Kobach have pursued legislation and litigation designed to reopen the question of birthright citizenship. But even though they might be selling this idea like it’s new, it has a very long, very fraught history in this country.

Gabriel Jack Chin is an author, legal scholar, and professor at the University of California, Davis School of Law.