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Birthright Citizenship

     A bill has been introduced in Congress - The Birthright Citizenship Act – that would change the law so that children born in this country whose parents are undocumented immigrants would not be considered citizens of the United States.  The operative portion of the proposed law states:

[A] person born in the United States shall be considered "subject to the jurisdiction" of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is–

(1) a citizen or national of the United States;

(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States;

(3) an alien performing active service in the armed forces.

     Would this law be constitutional under 14th Amendment and the decision of the Supreme Court in U.S. v. Wong Kim Ark (1898)?

     Section 1 of the 14th Amendment commences with these words: 

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.

     One of the reasons that this amendment was adopted was to overturn the decision of the Supreme Court in the notorious Dred Scott case, in which the Court had ruled that African-Americans, whether slave or free, could not be considered citizens of the United States.  But the "citizenship clause" of the 14th Amendment is not limited to race, any more than the Equal Protection Clause is; instead it applies to "all persons born in the United States and subject to the jurisdiction thereof."  The term "born in the United States" is free from ambiguity.  But what does the phrase "and subject to the jurisdiction thereof" mean?  The Supreme Court addressed that question in a decision 112 years ago in the case of U.S. v. Wong Kim Ark (1898). 

     Wong Kim Ark was born in the United States but his parents were citizens of China.  Not only were they not citizens, but they were not eligible to become citizens under federals laws called the "Chinese Exclusion Acts."   The government attempted to prevent Wong Kim Ark from returning to the United States after a visit to China, and Ark appealed to the Supreme Court, claiming that under the 14th Amendment he was a citizen of the United States.

     This was a time of deep racism against orientals.  To give you an idea of the level of prejudice against the Chinese race, consider this language from Justice Harlan's dissenting opinion in Plessy v. Ferguson (1896).  Harlan was the only member of the Court to find that a state statute  requiring the segregation of the black race was unconstitutional, famously stating that "There is no caste here," and that the Constitution must be "color-blind."  But Harlan went on to say:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

     Despite this widespread prejudice against the Chinese in the 1890s, the Supreme Court ruled in favor of Wong Kim Ark.  In a lengthy opinion, the Supreme Court reviewed the common law of England as well as the law of the United States to determine the meaning of the term "subject to the jurisdiction thereof."  The Court found ample authority for the proposition that this language meant that the children of diplomats or members  of a foreign occupying army would not be considered citizens, but that persons born in the United States whose parents were here for personal reasons, and not as representatives of their governments, were citizens of the United States.  The Court stated:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.

     Because Wong Kim Ark's parents were in the United States simply to make a living and not as representatives of their government, their son was born an American citizen.

    The text of the 14th Amendment does not distinguish between the children of citizens and the children of aliens; even less does it distinguish between persons whose parents are aliens lawfully in the United States and those who are here unlawfully.  The question of the constitutionality of the Birthright Citizenship Act therefore turns upon the meaning of the phrase "subject to the jurisdiction thereof," which was interpreted by the Court in Wong Kim Ark to exclude the children of foreign diplomats and foreign occupiers.
    Students who are registered for Professor Huhn's courses may participate in discussions about this and other constitutional issues in the news through their account at Springboard at the University of Akron.