Since the question has arisen whether the federal government could look at the issue of birthright citizenship differently under the new administration and not allow it, here is the portion of a chapter of my book examining the issue. Also added is what will additionally appear in the chapter in the book I am now working on tentatively titled "How The U.S. Supreme Court Has Made You Less Safe".
You can find the book here or at Barnes & Noble in paperback or as an ebook.
Citizenship
The first sentence of the Amendment should be examined to consider how
the Court has affected citizens who believed the country would be in control of
its destiny in regards to allowing others to remain here and be recognized as
citizens.
The first sentence of Amendment 14, Section 1 provides:
All persons, born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of any State wherein they reside.
In Elk v. Wilkins (1884), the Court addressed whether Native Americans born on U.S. soil were automatically citizens under the Fourteenth Amendment. John Elk, a Native American, claimed U.S. citizenship after leaving his tribe and living among non-Native communities. The Court ruled that Elk was not a citizen because Native Americans owed allegiance to their tribes, not the U.S. government, and were therefore not "subject to the jurisdiction" of the United States.Here is the important language from the Elkins case:
But an emigrant from any foreign State cannot become a citizen of the United States
without a formal renunciation of his old allegiance, and an acceptance by the United States .of that renunciation though such form of naturalization as may be required by law. The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which "no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President ;" and "the Congress shall have power to establish an uniform rule of naturalization." Constitution, art. 2. sect. 1; art. 1, sect. 8.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of
naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth
Amendment, than the children 'of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.
It is also worthy of remark, that the language used, about the same time, by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is "all persons born in the United States, and not subject to any foreign power..., excluding Indians not taxed.”
This important point was abandoned by later Courts forgetting that if there was an "owed allegiance" to another country or tribe there was no allegiance to the United State and therefore how could one be "subjection to the jurisdiction" of our country? In a naturalization ceremony the person seeking citizenship must renounce their allegiance to the country of which they are a citizen and pledge allegiance to the United States before being allowed to become a citizen. How then, could the Courts make the change and say that citizenship occurs merely from being born here if the parents have not become naturalized citizens? The parents of that child, if not citizens, have not done what is required of someone seeking naturalization. The later Courts' reasoning is in error and should be corrected.
African-American slaves were originally denied the right of citizenship, a
position that was supported in 1859 by the Court in the Dred Scott case. The
Court said that slaves, former slaves, even if they had been freed, and their
descendants were not eligible under the Constitution to be citizens. After the
Civil War and the Emancipation Proclamation when the slaves were freed,
Congress passed a law appropriately called “An Act to protect all Persons in
the United States in their Civil Rights, and furnish the Means of their
Vindication.” in order to correct this situation.
Congress, however, was concerned that the rights obtained by this law
might be repealed by a later Congress or determined to be unconstitutional by
the Court so they drafted the 14th Amendment. The language of the 14th
Amendment should be understood in this context. The citizenship section was
therefore drafted to assure that the African-Americans would be considered to
be citizens by virtue of their being emancipated and include others born to
them thereafter.
It is logical that the clauses in the amendment such as “privileges and immunities”, “due process”, and “equal protection” were also intended to apply only to those African-Americans because that was the purpose for which it was drafted and ratified by the states.
To shed some light on the question of what citizenship meant to those who
framed the 14th amendment provision we can look to the debates that occurred
before the proposal was submitted to the states for ratification. It is necessary
to quote from the debates at length to show the state-of-mind of those creating
the amendment.
In the presentations in Congress, Michigan Senator Jacob Howard
addressing the question of the meaning of citizenship in the proposed
amendment stated:
… 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 embassadors or foreign
ministers accredited to the Government of the United States, but will
include every other class of persons. It settles the great question of
citizenship and removes all doubt as to what persons are or are not citizens
of the United States….
Pennsylvania Senator Edgar Cowan stated:
… I am really desirous to have a legal definition of “citizenship of the
United States.” What does it mean? What is its length and breadth? … Is
the child of the Chinese immigrant in California a citizen? Is the child of a
Gypsy born in Pennsylvania a citizen? If so what rights have they? Have
they any more rights than a sojourner in the United States? If a traveler
comes here from Ethiopia, from Australia, or from Great Britain, he is
entitled to a certain extent, to the protection of the laws. … He has a right
to the protection of the laws; but he is not a citizen in the ordinary
acceptation of the word.It is perfectly clear that the mere fact that a man is born in the country
has not heretofore entitled him to the right to exercise political power. He
is not entitled, by virtue of that, to be an elector…. So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so
far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the state of Pennsylvania; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that
particular. I have supposed, further, that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them….
Ironically, the concern of the representatives from the state of California
was that there were many Chinese people coming to the country as laborers and
if their children born here were automatically American citizens they believed
it would greatly affect their state.
Another argument taking place during the debate was the meaning of the
phrase “and subject to the jurisdiction thereof”. As an example, foreigners
traveling in the United States, passing through, or here for some period of time
but not applying for citizenship were not considered “subject to the jurisdiction
thereof” because they were still subject to the jurisdiction of their native
countries. This was logical because they had not renounced their citizenship to
their native countries and been naturalized in this country which was required
in that sense to be subject to the jurisdiction of this country.
Otherwise, a woman could come to this country intentionally in order to
give birth to a child and have that child automatically become a citizen of the
United States. Because of a Court decision that is exactly what has occurred in
a distortion of the Constitution allowing many to be considered citizens when
the drafters of the amendment never intended such a result.
In 1898, the Court decided the case of U.S. v. Wong Kim Ark in which it
held that by applying the 14th Amendment provision practically everyone born
in the United States was a United States Citizen. The case involved Wong Kim Ark who had been born to Chinese parents living in San Francisco, California. He was denied re-entry to the country after going on a trip abroad under a law that restricted Chinese immigration and prohibiting immigrants from China from becoming naturalized citizens. He challenged the government’s refusal to recognize his citizenship and the Court ruled in his favor.
The Court begins the opinion by referring to the common law of England
relating to a person being “within the King’s allegiance”. This was unfortunate
because the Constitution replaced the common law by stating principles that
were to be carried out in the legislation by Congress so there should have been
no discussion or reference to the common law of England. After all there had
been a revolution.
In addition, the discussion by the Court of English law and practice in the
colonies before the revolution was unnecessary because the drafting of the 14th
Amendment occurred by those who argued their positions in Congress. Clearly,
the Senators quoted above, excluded the children born of foreigners from
consideration of citizenship in the United States.
As to the arguments presented in the majority opinion, Chief Justice
Melville Fuller in his dissenting opinion, joined in by Justice John Marshall
Harlan, states:
The framers of the Constitution were familiar with the distinctions
between the Roman law and the feudal law, between obligations based on
territoriality and those based on the personal and invisible character of
origin, and there is nothing to show that, in the matter of nationality, they
intended to adhere to principles derived from regal government, which they
had just assisted in overthrowing.
Manifestly, when the sovereignty of the Crown was thrown off and an
independent government established, every rule of the common law and
every statute of England obtaining in the Colonies in derogation of the
principles on which the new government was founded was abrogated.
The States, for all national purposes embraced in the Constitution,
became one, united under the same sovereign authority and governed by
the same laws, but they retained their jurisdiction over all persons and
things within their territorial limits except where surrendered to the
General Government or restrained by the Constitution, and protection to
life, liberty and property rested primarily with them….
Concerning the issue of following the common law of England, Justice Fuller said:
Obviously, where the Constitution deals with common law rights and
uses common law phraseology, its language should be read in the light of
the common law; but when the question arises as to what constitutes
citizenship of the nation, involving as it does international relations, and
political, as contradistinguished from civil, status, international principles
must be considered, and, unless the municipal law of England appears to
have been affirmatively accepted, it cannot be allowed to control in the
matter of construction.
Nationality is essentially a political idea, and belongs to the sphere of
public law…..
He added, referring to historical considerations at the time:
Before the Revolution, the view of the publicists had been thus put by
Vattel:
The natives, or natural-born citizens, are those born in the country of
parents who are citizens. As the society cannot exist and perpetuate itself
otherwise than by the children of the citizens, those children naturally
follow the condition of their fathers, and succeed to all their rights. The
society is supposed to desire this in consequence of what it owes to its own
preservation, and it is presumed as matter of course that each citizen, on
entering into society, reserves to his children the right of becoming
members of it. The country of the fathers is therefore that of the children,
and these become true citizens merely by their tacit consent. We shall soon
see whether, on their coming to the years of discretion, they may renounce
their right, and what they owe to the society in which they were born. I say
that, in order to be of the country, it is necessary that a person be born of a
father who is a citizen; for, if he is born there of a foreigner, it will be only
the place of his birth, and not his country.
Book I, c.19, § 212.
Thus the majority of the Court, by judicial fiat, overruled Congress and
since that time all persons born in the United States, even though they are the
children of foreigners who have not abandoned allegiance to their native
country and sworn allegiance to this country, have been considered to be
citizens. The Court could not have had a more harmful effect on the citizenship
of this country than by their interpretation of this portion of the 14th
Amendment.
So the Senators’ fears, expressed during the debates on the issue of
citizenship as stated in the 14th Amendment, were realized. How could that
happen if the Court was paying attention to the purposes for which the
amendment was drafted, that being to allow full citizenship for those African-
Americans who were denied that status before the Civil War? Because
apparently the Court did not concern itself with that purpose and simply
wanted to extend citizenship to everyone who is born on United States soil.
The nail was placed in the coffin, so to speak, when the Court decided the
case of Plyler v. Doe in 1982. Although not a “citizenship” case, it indicates
how far the Court will go to establish its own social policy. The case required
that a free education be provided by the state of Texas to children of illegal
immigrants which would normally only be provided to citizens and the
children of citizens.
A Texas law passed by the state legislature, the elected representatives of
the people of the state, withheld from local school districts any state funds for
the education of children who were not “legally admitted” into the United
States. The law therefore did not allow those children a free education.
The state argued that by having to provide educational services to those
children it would stress the school system to the extent that it would not be able
to provide quality services to the children of their own citizens. Of course,
those children from a foreign country were not “citizens” in any sense of the
word. They were not born here and were brought here illegally.
The majority of the Court did not accept the arguments, instead basing
their decision on the “equal protection” clause of the 14th Amendment to the
Constitution to overrule the Texas legislation. Justice William Brennan wrote
the majority opinion stating:
The question presented by these cases is whether, consistent with the
Equal Protection Clause of the Fourteenth Amendment, Texas may deny to
undocumented school-age children the free public education that it
provides to children who are citizens of the United States or legally
admitted aliens.
In other words, the Court decided the law of the state of Texas
providing that no funds should be expended for children of illegal aliens in
the state school system was a violation of the 14th Amendment clause
because children of citizens were entitled to that free education. The
wisdom of the statement is in question because the Court itself has said
that equal protection only applies to those “similarly situated” and
certainly children of illegal aliens are not “similarly situated” to children
of citizens. That did not matter to the Court.
The Court then stated:
That a person’s initial entry into a State, or into the United States, was
unlawful, and that he may for that reason be expelled, cannot negate the
simple fact of his presence within the State’s territorial perimeter. Given
such presence, he is subject to the full range of obligations imposed by the
State’s civil and criminal laws. And until he leaves the jurisdiction -- either
voluntarily, or involuntarily in accordance with the Constitution and laws
of the United States -- he is entitled to the equal protection of the laws that
a State may choose to establish.
How ridiculous could the Court’s reasoning be when it admitted it was a crime to
enter the United States illegally? How could the court then go on to require that
education services be provided to the children of those who broke the law and
came here? The Court did it on the basis of an interpretation of the “equal
protection” clause of the 14th Amendment that stretches its meaning to the limit.
The Court ended its opinion with this statement:
… It is difficult to understand precisely what the State hopes to achieve
by promoting the creation and perpetuation of a subclass of illiterates
within our boundaries, surely adding to the problems and costs of
unemployment, welfare, and crime. It is thus clear that whatever savings
might be achieved by denying these children an education, they are wholly
insubstantial in light of the costs involved to these children, the State, and
the Nation.
…
If the State is to deny a discrete group of innocent children the free
public education that it offers to other children residing within its borders,
that denial must be justified by a showing that it furthers some substantial
state interest. No such showing was made here….
Of course the substantial state interest, which the Court chose to ignore, was the
effect it would have if it were forced to provide free educational services for
children who came to the state of Texas illegally. The state would then have to
compromise the services provided to the children of its own citizens unless there
was a substantial increase in resources in the way of taxes – taxing its own citizens
to provide a free education to those illegally brought to the country thus rewarding
the illegal activity and encouraging others to cross the border. Could the Court act
any more in a tyrannical manner in making this determination that rewards
illegality?
Could the drafters of the 14th Amendment ever have envisioned such a
decision by the Supreme Court? Of course not. As you recall, the purpose of
the amendment was to assure that the freed African-American slaves and those
born to them thereafter would be entitled to the same “privileges and
immunities” on the basis of “equal protection” as other non African-Americans
in the country at the time. It is beyond comprehension that they would believe
the provisions of the amendment would be used to establish whatever public
policy the Court might want to exist.
A dissenting opinion, strongly rejecting the decision reached by the
majority of the Court, was written by the Chief Justice Warren Burger, with
whom Justice Byron White, Justice William Rehnquist, and Justice Sandra Day
O’Connor agreed. He wrote:
Were it our business to set the Nation’s social policy, I would agree
without hesitation that it is senseless for an enlightened society to deprive
any children—including illegal aliens —of an elementary education. I fully
agree that it would be folly—and wrong—to tolerate creation of a segment
of society made up of illiterate persons, many having a limited or no
command of our language.[1] However, the Constitution does not constitute
us as “Platonic Guardians,” nor does it vest in this Court the authority to
strike down laws because they do not meet our standards of desirable
social policy, “wisdom,” or “common sense.” See TVA v. Hill, 437 U.S.
153, 194-195 (1978). We trespass on the assigned function of the political
branches under our structure of limited and separated powers when we
assume a policymaking role as the Court does today.
Those judges dissenting therefore clearly saw that the Court was infringing
on the role of the legislative branch of the state government by making social
policy as it saw fit.
Chief Justice Burger continues:
The Court makes no attempt to disguise that it is acting to make up for
Congress’ lack of “effective leadership” in dealing with the serious
national problems caused by the influx of uncountable millions of illegal
aliens across our borders.[2] See ante at 237-238 (POWELL, J.,
concurring). The failure of enforcement of the immigration laws over more
than a decade and the inherent difficulty and expense of sealing our vast
borders have combined to create a grave socioeconomic dilemma. It is a
dilemma that has not yet even been fully assessed, let alone addressed.
However, it is not the function of the Judiciary to provide “effective
leadership” simply because the political branches of government fail to do
so.
The Court’s holding today manifests the justly criticized judicial
tendency to attempt speedy and wholesale formulation of “remedies” for
the failures—or simply the laggard pace—of the political processes of our
system of government. The Court employs, and, in my view, abuses, the
Fourteenth Amendment in an effort to become an omnipotent and
omniscient problem solver. That the motives for doing so are noble and
compassionate does not alter the fact that the Court distorts our
constitutional function to make amends for the defaults of others.
Chief Justice Burger also stated:
I have no quarrel with the conclusion that the Equal Protection Clause
of the Fourteenth Amendment applies to aliens who, after their illegal entry
into this country, are indeed physically “within the jurisdiction” of a state.
However, as the Court concedes, this “only begins the inquiry.” [102 S.Ct.
2409] Ante at 215. The Equal Protection Clause does not mandate
identical treatment of different categories of persons. Jefferson v. Hackney,
406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971); Tigner v.
Texas, 310 U.S. 141, 147-148 (1940).
The dispositive issue in these cases, simply put, is whether, for
purposes of allocating its finite resources, a state has a legitimate reason to
differentiate between persons who are lawfully within the state and those
who are unlawfully there. The distinction the State of Texas has drawn—
based not only upon its own legitimate interests but on classifications
established by the Federal Government in its immigration laws and
policies—is not unconstitutional.
Chief Justice Burger concludes:
… If ever a court was guilty of an unabashedly result-oriented
approach, this case is a prime example.
So, in order to reach the result the five members of the court forming the
majority desired, providing a free education to the children of illegal
immigrants, those justices justified their decision by stating that once those
children were within the state they were entitled to the same educational
services as citizens of the state. The four members of the court disagreeing with
the decision believed the decision was wrong.
It was.
What has the Court done to our right as citizens of the United States by
virtue of their decisions distorting the language of the 14th Amendment?
Sweeping aside the rights of those who applied for and were granted
citizenship in this country, the Court has allowed the children of illegal
immigrants the same right of education as legitimate citizens even though their
parents did not enter the country legally. How could a branch of the
government be more dangerous than one that allows a distorted view of a
constitutional clause so the country cannot control who becomes a citizen and
is then allowed to vote?
Don
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