Thursday, January 6, 2011
A group of state lawmakers yesterday announced a coordinated multi-state initiative to tee up the Fourteenth Amendment Citizenship Clause for judicial review. The NYT reports here; LAT here; NLJ here.
The Citizenship Clause in Section 1 of the Fourteenth Amendment (1868) reads:
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.
The lawmakers, along with a group called State Legislators for Legal Immigration, proposed a model bill that would zero in on the phrase "subject to the jurisdiction thereof" in defining state citizenship. They say that phrase means that at least one parent of a child born within the United States must owe no allegiance to any foreign sovereignty--that is, that they must be a U.S. citizen or national, a permanent "legal" immigrant, or a person without citizenship in another country, or that the child has no citizenship or nationality in another country. (Model language is here.)
Proponents hope that the model statute would draw a judicial challenge, thus presenting the phrase for review by the courts, ultimately the Supreme Court.
They seem pretty confident in their interpretation, but there's good evidence against them. Start with the congressional debates over the Fourteenth Amendment--a debate eerily similar to that today. The debate in the 39th Congress focused on Chinese immigrants in California and Gypsies in Pennsylvania (among other groups), with opponents of birthright citizenship claiming that Chinese and Gypsies would take over those states. Opponents of birthright citizenship in the Amendment (obviously) lost that debate in the 39th Congress.
Even before the Fourteenth Amendment--and before the Constitution had anything to say about birthright citizenship--the New York Court of Chancery ruled in Lynch v. Clarke in 1844 that a child of "alien parents, during their temporary sojourn in [New York]," was a citizen. The court ruled that citizenship was a national, not state, responsibility; and the U.S. Constitution being silent on the matter, the common law rule that a child born "within the king's allegiance, became subjects, whatever were the situation of their parents" governed. Thus: "It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents." (The Supreme Court seemed to assume, but did not squarely rule, in 1804 in Murray v. The Charming Betsy that those born within the United States were citizens.) The Citizenship Clause of the Fourteenth Amendment would seem only to affirm and constitutionalize (not qualify or reverse) this holding.
Post-Fourteenth Amendment, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that a child born to Chinese aliens was a U.S. citizen under the Citizenship Clause. The parents were "subjects of the Emperor of China," but "domiciled residents of the United States." After an exhaustive review of birthright citizenship, the Court wrote,
the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. [Ed: The Court carved out this exception in Elk v. Wilkins (1884), based upon the unique place that Native Americans had in the Constitution.] The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains wtihin our territory, is yet . . . "strong enough to make a natural subject . . . ."
Opponents of birthright citizenship distinguish and criticize Wong Kim Ark. (Check out this 2006 piece at the Heritage Foundation for a flavor.)
For an excellent overview, putting this all in a larger context, but focusing on congressional legislation and proposed constitutional amendments from the 111th Congress, check out this Congressional Research Service report, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents.