Tuesday, August 3, 2010

Birthright Citizenship, Fourteenth Amendment, and Constitutional Interpretations

The Fourteenth Amendment begins, "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."

Some Senators want Congress to “reconsider” this provision which confers what has come to be called "birthright citizenship."   In the words of Arizona Senator Jon Kyl:

“There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. … And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”

Kyl has suggested to fellow Senators that  “we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.”

A good place to start might not be with a "constitutional expert," but with Brook Thomas’ new article in Law and Literature, entitled The Legal And Literary Complexities of U.S. Citizenship Around 1900.  (It is available on westlaw and lexis, and in print, Law and Literature Jul 2010, Vol. 22, No. 2: 307–324).

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Thomas (pictured above), an English professor, has long been considering citizenship in historical and literary contexts and is the author of several books on related subjects, but this essay is refreshingly brief.  Thomas writes:

One year before he argued Homer Plessy's case before the Supreme Court, Albion W. Tourgée wrote, "Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations." This essay explores those complexities by cross-examining three Supreme Court cases decided within five years of one another--Plessy v. Ferguson (1836), U.S. v. Wong Kim Ark (1898), and Downes v. Bidwell (1901).   

Thomas also turns to several novels from the period to illuminate the contexts of the cases.

Thomas notes that the politics of the debates of 1900 are very different from the politics of the debates of 2010, including those surrounding birthright citizenship, an issue “supposedly resolved by Wong Kim Ark.”  Nevertheless, he argues

we cannot properly understand the complexities of our present debates without understanding the complexities of those in the past. I also suspect that our understanding would be enhanced if we turned to some recent works of literature.


Perhaps Professor Brook Thomas might be attempting to elucidate some of the complexities of the present debate by answering questions from Senator Kyl in a future hearing

RR

http://lawprofessors.typepad.com/conlaw/2010/08/citizenship-fourteenth-amendment-and-constitutional-interpretation.html

Current Affairs, Fourteenth Amendment, History, Interpretation, Reconstruction Era Amendments, Scholarship, Theory | Permalink

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