The Conservative Attack on Birthright Citizenship

In the United States, legislation that targets groups based on racial identity or national origin is subject to the most rigid scrutiny. It is unconstitutional unless it is narrowly tailored to serve a compelling governmental interest. The challenge to birthright citizenship is repugnant on several grounds: it stigmatizes the children of undocumented immigrants. It is targeted at a specific racial/ethnic group—Latinos—and at a specific nationality—Mexicans. The movement to repeal—and mainstream acceptance of its legitimacy—has grown up in a context in which members of far-right groups feel emboldened to violently attack Latinos in border states, all the while cloaking themselves in the language of “security” and “border control.”³

But facts do matter. So does law. Both the facts and the law demonstrate that arguments calling for a repeal of birthright citizenship cannot be supported by the history leading up to the passage of the 14th Amendment, the intent of the Framers who drafted it, or the Supreme Court’s interpretation of the birthright citizenship provision.

The Case That Started the Civil War

The 1857 Supreme Court case Dred Scott v. Sanford has been called the case that started the Civil War. In it, the court, led by Chief Justice Roger Taney of Maryland, held that Blacks “are not… and were not intended to be included under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.”⁴ The decision was sweeping in its scope. It foreclosed citizenship rights for slaves and stripped free Blacks (many of whom were property owners and even voters in the North) of their citizenship.

After the Civil War, Black Codes—local laws that created a labor-contract system that forced Black families into indentured servitude, limited Black access to the justice system, and restricted Black movement—threatened to make Blacks “slaves in everything but name,” in the words of W.E.B. DuBois.⁵ (In the restrictions the Black Codes placed on where Blacks could live and work, they resemble today’s statutes that attempt to regulate Latinos’ access to jobs and home rental.) Under the Black Codes, newly freed slaves were “required to reside on and cultivate the soil without the right to purchase or own it[,] … were excluded from many occupations of gain and were not permitted to give testimony in the courts of any case where a white man was a party,” explained the Supreme Court in one case.⁶ By maintaining the former slaves as a servile class, one correspondent observed that Southerners were “determined to do by policy what they had failed to do with arms.”⁷

Nevertheless the use of arms by Southerners constituted its own problem: violence by intransigent Southerners directed at both former slaves and Union officials suggested that without the presence of Union soldiers in the South, the peace was precarious indeed. Violence was encouraged by Southern legislators, who exhorted their constituents to resist “acts of Congress … by the bayonet.”⁸ The loyalty of the South to the Union remained in question. Bombastic secessionist rhetoric continued unabated.

Any attempt to understand the meaning and intent of the provisions of the 14th Amendment must be made with the knowledge of this historical context. The physical battles of the Civil War were over, but the legislative war was yet to be won. Neither the loss of 600,000 lives in the Civil War, Lincoln’s Emancipation Proclamation, nor even the passage of the 13th Amendment, which abolished slavery, could restore or create citizenship status for former slaves and free Blacks. By the summer of 1866, Republicans—both moderate and radical—understood that strong legislation protecting the rights of newly freed Blacks would be necessary to ensure that the war had not been fought in vain. Before settling the debates about the meaning of “privileges and immunities” or even “equality” as used in the 14th Amendment, the Reconstruction Congress understood that, first and foremost, the newly freed slaves, and indeed all Blacks, needed to be entitled to citizenship on the same terms as Whites. As a result, the birthright citizenship provision was the first and least controversial provision of the 14th amendment. It was also the most important.

For this reason, attacks on the birthright citizenship provision not only target Latinos, they also constitute an affront to African Americans, for whom the provision was originally enacted. Efforts to undo birthright citizenship undermine the foundation of Black—and indeed all—civil rights. In this regard, contemporary efforts to repeal birthright citizenship strike at the most lasting and important legacy of the Reconstruction Congress: the post-Civil War transformation of American ideals and identity.

The Framers’ Determination to Extend Birthright Citizenship to All

When the Reconstruction Congress guaranteed that anyone born on U.S. soil would become a citizen, it did so consciously, deliberately, and explicitly. Any fair examination of the legislative history reveals that Congress considered and rejected many of the arguments made by contemporary repeal supporters. Conservatives who in other contexts contend that the Constitution should mean only what the Framers intended conveniently ignore the great weight of the historical record surrounding their decision to embrace birthright citizenship.

When the 14th Amendment was enacted, there was no more disfavored immigrant group than Chinese laborers. Nineteenth-century U.S. history (and indeed a good part of twentieth-century history as well) is replete with national and local discriminatory legislation targeted at Chinese immigrants. Justice John Marshall Harlan’s dissent from the Supreme Court’s Plessy v. Ferguson decision, which upheld the constitutionality of segregation, is well-known for its courageous and prescient articulation of Black equality—but it is less well-known for its explicit denigration of Chinese immigrants. In support of his argument that segregation in public accommodations is unconstitutional, Harlan criticized Louisiana’s segregation laws, which restricted Blacks but not other races. He reminded the majority that “there is a race so different than our own that we do not permit those belonging to it to become citizens of the United States … I allude to the Chinese race.”⁹ Segregation of Blacks on railway cars could not be justified, reasoned Harlan, if no such laws existed to similarly restrict the Chinese. Indeed, as a matter of federal law, Chinese immigrants were effectively barred from becoming citizens until 1943¹⁰—a sweeping restriction placed on no other immigrant group in U.S. history.

Prejudice against the Chinese was no less intense in 1866, when Congress was debating the birthright citizenship provision of the 14th Amendment. During the debate, some opponents asked, “Is the child of the Chinese immigrant in California a citizen? Is the child of Gypsy born in Pennsylvania a citizen?”¹¹ Others openly expressed the fear that “the tide of emigration that might pour in upon the Pacific States from the surcharged populations of eastern Asia” would overrun “[o]ur Christian civilization and our [g]overnment.”¹² A senator opposed to Section I asked “Are [the people of California] to be immigrated out of house and home by the Chinese?”¹³

These concerns failed to win the day. Instead, the principle of birthright citizenship was deemed critical to the transformation of the United States. One Republican senator from California who had expressed concerns about Chinese immigration nevertheless offered his support for the birthright citizenship provision, announcing, “[W]e are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law.”¹⁴

Clearly, in the interest of articulating an undiluted principle of equality in citizenship, the Framers chose to ensure that any person born on U.S. soil would be a citizen of the new United States, as ushered in by the Civil War Amendments to the Constitution.

“Subject to the Jurisdiction”

On the first day of the 2011 congressional session, Rep. Steven King (R-IA) introduced legislation to amend the Immigration and Nationality Act to outlaw automatic birthright citizenship.¹⁵ King argued that the 14th Amendment on its face gives Congress the authority to restrict birthright citizenship because of the language of Section 1, which includes the qualification that potential citizens born on U.S. soil must be “subject to the jurisdiction” of the United States. King contends that this enables Congress to deny citizenship to the children of illegal immigrants who, he says, are not “subject to the jurisdiction” of the United States.

A simple originalist analysis of the birthright citizenship provision defeats King’s argument. The intense prejudice against the Chinese again led to the Supreme Court’s most cogent and unequivocal interpretation of the birthright citizenship provision, in the 1898 case, U.S. v. Wong Kim Ark.¹⁶ In that case, the court had to decide whether the U.S.-born child of Chinese immigrants was a citizen. Wong Kim Ark was born and raised in San Francisco, the son of Chinese laborers who were forbidden by federal law from becoming naturalized citizens. When he was about seventeen, Wong Kim Ark and his parents visited China, and upon his return to the United States, he was permitted to enter the country by customs officers, on the grounds that he was a U.S. citizen. However, when he went to China for a second visit four years later, customs officers prohibited him from re-entering, claiming that he was not a U.S. citizen.

At the outset of the case, the court noted an important fact: Wong Kim Ark’s parents were laborers. They had never been “employed in any diplomatic or official capacity under the Emperor of China.”¹⁷ This was the key to the court’s resolution of the case. It found that the words “subject to the jurisdiction” confirmed the common-law understanding that diplomats are “subject to the jurisdiction” not of the country in which they serve, but of their sovereigns. (Similarly, an embassy represents the actual territory of the home country, and the conferral of diplomatic immunity recognizes that foreign ambassadors are subject to their countries’ laws.) The Framers intended to recognize and carry forward this tradition. Thus, the children of foreign diplomats who are born in the U.S. do not become U.S. citizens.

Common law also recognized a second category of children born in the United States who were excluded from birthright citizenship: those born to soldiers in hostile armies of occupation. Thus, according to the court, “The real object of … the addition [of the words] ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words … the two classes of cases—children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”¹⁸ The amendment, according to the court, “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States.”

Congress regulates naturalized citizenship. But the fact that Congress had exercised its power over naturalization to exclude Chinese immigrants was irrelevant to the citizenship of Wong Kim Ark. The court held that “[t]he fact … that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution.”¹⁹ The 14th Amendment, said the court, “has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.”²⁰ Birthright citizenship is limited only by “birth within the dominion of the United States, notwithstanding alienage of parents.”²¹ Wong Kim Ark was unequivocally a U.S. citizen. And Congress is powerless to restrict birthright citizenship.

Rep. King’s efforts to restrict birthright citizenship by statute, therefore, constitute a patently unconstitutional usurpation of authority. The birthright citizenship provision of the 14th Amendment cannot be altered by legislation. Only a constitutional amendment can overturn a constitutional provision—much as Section 2 of 14th Amendment, which requires the inclusion of Blacks in the enumeration of population for congressional districts, overturned the hideous “3/5 clause” of Article I of the Constitution, which counted only a fraction of each slave for purposes of apportionment.

The Benefits of Birthright Citizenship

The U.S. is among a minority of countries that provide birthright citizenship—also called jus soli. Most countries, including many in Europe as well as India, determine citizenship according to jus sanguinis—or “blood law.” Under jus sanguinis a child’s citizenship depends on the citizenship of the parents. To be a citizen, one parent, or in some cases grandparent, must also have been a citizen. Jus sanguinis often results in generations of permanent immigrants who, despite their longstanding presence and work in a country, never count as citizens. In Germany, for example, generations of Turkish “guest workers” were never accepted as Germans, resulting in parallel, separate, self-contained Turkish communities in cities like Berlin and Hamburg.²² After 9/11, German authorities recognized that they had little meaningful understanding of or contacts with the large Turkish-Muslim communities in those cities.

Ironically, nativists who attack birthright citizenship fail to recognize that it furthers the aims many of them purport to advance in other contexts. For example, many right-wing anti-immigrant groups support “English only” initiatives and argue that immigrants to the United States should integrate themselves fully into U.S. culture. But it is birthright citizenship that has fostered the integration of immigrants into mainstream American life at a rate and with an intensity unprecedented among immigrants internationally.

Although racial and national origin, and language-minority discrimination continue to pose substantial challenges to Blacks, Latinos, and others in the United States, when compared to other western nations, this country has been remarkably successful in absorbing immigrants. Contrary to conservative rhetoric, empirical evidence demonstrates that the children of immigrants to the U.S. today quickly become integrated.²³ Even when segregated, immigrants enjoy a support network of social service organizations, political leaders, and activists. Birthright citizenship and the presence of a well-developed civil rights infrastructure ensures that successive generations benefit from accumulated political power and social justice organizing.

What Graham, King, and other antibirthright citizenship advocates propose is trading in America’s relatively successful (although troubled) immigrant integration experience for the failures of Western Europe.

The New United States

Despite the high aspirations of the Framers of the 14th Amendment, it took nearly 100 years for the Civil War Amendments to begin to yield fruit from the trees they so painstakingly planted. The early flower of Reconstruction—the election of seven Black congressmen,²⁴ the construction of 630 schoolhouses, eleven colleges and universities,²⁵ and participation of 700,000 Black voters in the presidential election of 1872²⁶—soon gave way to the reign of violence, repression, and terror that marked the years 1875 – 1900.²⁷ During this period, known as “the nadir,” southern segregationists, apathetic white northerners, and an acquiescent Supreme Court read out of the 14th Amendment the very protections the Framers had carefully debated and adopted. The equal protection clause was interpreted by the Supreme Court in 1896 to mean “separate but equal.” The due process clause was hijacked by corporations, which became the primary beneficiaries of its protections for the first seventy years after the amendment’s passage. The one provision that remained untouched, and that formed the foundation from which the other provisions drew their strength, was the birthright citizenship provision. With the Supreme Court’s decisive determination in Wong Kim Ark, the birthright citizenship provision became the least controversial and least-litigated provision of the 14th Amendment and ensured that America would retain its unique position as a “nation of immigrants.”

Contemporary attacks on birthright citizenship are transparent and odious attacks on Latino immigrants and immigrant families. But they are also attacks on the rebirth of the United States after the Civil War. The new Constitution that accompanied America’s rebirth was one designed to reframe the terms of citizenship in this country. Under these terms, this country for the first time removed the stain and shame of slavery, and created the promise of equality which, although yet still unmet for many in this country, has become enshrined as the highest national ideal.