Private: On Birthright Citizenship, We Should Honor the Constitution

Editor's Note: The following essay was originally published as a "Perspective," in the June 9 edition of the Los Angeles Daily Journal and is reprinted with the permission of Daily Journal Corp. (2010). Following the post is an addendum for ACSblog, in which Professor Bryan H. Wildenthal offers additional thoughts on the recent Republican proposals to amend, or consider amending, the 14th Amendment Citizenship Clause.

By Bryan H. Wildenthal, Professor of Law, Thomas Jefferson School of Law in San Diego, Calif. Professor Wildenthal has published several major articles on the history and meaning of the 14th Amendment, one of which was cited five times by the U.S. Supreme Court in McDonald v. Chicago, 130 S.Ct. 3020 (2010); id. at 3033 n. 10 (Opinion of the Court by Alito, J.) (two citations); id at 3072 n. 10, 3073 n.12, and 3079 (Thomas, J., concurring in part and concurring in judgment).

Should children born on American soil obtain "birthright" U.S. citizenship, even if their parents are not legal immigrants? Rep. Duncan D. Hunter, (R-CA), and "Tea Party" Republican Rand Paul, the Kentucky U.S. Senate candidate, are among many who say no. Hunter is co-sponsor of a bill seeking to strip citizenship from all future children born to non-citizens (even those legally residing here on student or work visas), unless at least one parent has legal permanent residence or serves in the U.S. armed forces. The bill is perversely numbered H.R. 1868, for the year the 14th Amendment to our Constitution was ratified. That great amendment, which built upon our Bill of Rights, defines citizenship and guarantees the basic rights of both citizens and all "persons" (including non-citizens). It declares, in part: "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."

So-called "conservative" politicians, and especially "Tea Party" activists, claim to respect the "original meaning" of our Constitution, and criticize liberals and progressives for allegedly failing to do so. But it is right-wing radicals like Paul and Hunter who should pay closer attention to the text and history of the Constitution, which stand flatly opposed to their views. H.R. 1868 would betray and violate the core meaning of the 14th Amendment.

This issue was settled more than a century ago. The Supreme Court, in U.S. v. Wong Kim Ark (1898), rejected the idea that the status of parents (in that case, Chinese immigrants ineligible for U.S. citizenship and allegedly "subject" to a "foreign power") barred citizenship for their children born under American jurisdiction. The 19th century cases, like the original debates over the 14th Amendment in 1866-1868, make clear that only a handful of narrow exceptions apply to the concept of "jurisdiction" -- mainly children born to foreigners with diplomatic immunity or within America's Indian Nations as they existed at that time. (Tribal member Native Americans, while generally subject to federal jurisdiction today, were mostly not considered U.S. citizens in the 19th century; they were fully naturalized only in 1924.)

No one can seriously dispute that an illegal immigrant is "subject to [U.S.] jurisdiction." How else would this country have jurisdiction to arrest and deport such immigrants, or prosecute them for immigration or other crimes they may commit, as the federal and state governments routinely do?

This rule of birthright citizenship was precisely what was intended and understood by the supporters of the 14th Amendment -- ironically, Republicans of the "Party of Lincoln" that fought to end slavery and advance racial equality. Paul and Hunter would betray not only the Constitution, but the greatest legacy of their own party! The Republicans of the 1860s sought to ensure that America would forever be a land of equality, free of caste or hierarchy based on race, nationality, or the status of one's parents. The legal status of a human being, born breathing American air within U.S. jurisdiction, should not be inherited or dependent on the status or conduct of parents over which the child has no control. That would harken back to the era of slavery and feudalism ended by the Civil War.

The racist opponents of the 14th Amendment tried to defeat it by raising a ruckus over the fact that it would grant citizenship, not just to African American former slaves and their children, but also to the children of Chinese immigrants and the nomadic Roma (so-called "Gypsy") people. California, in fact, refused to ratify the Amendment due mainly to hysteria over Chinese immigration. Hunter should pay heed to the courage of his California Republican forebear, Sen. John Conness (an Irish immigrant himself; Mount Conness in the Sierra Nevada is named in his honor). In 1866, Conness scornfully dismissed the immigrant-bashing of his day; he supported the 14th Amendment precisely in order "to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights...."

The United States did not regulate most immigration in the late 19th century, so there was no precise legal analogy then to today's "illegal alien." But the Roma people were viewed then as an outlaw population. "Legal" immigration at that time was mostly undocumented and effectively uncontrolled, much like illegal immigration today. The waves of migrants seeking economic opportunities aroused great fear and prejudice, just like today. Chinese and other Asian immigrants (those not born on U.S. soil) were prohibited at that time from ever obtaining citizenship, even as their work was exploited to build America's railroads and develop the country.

Yet the citizenship of their children was rightly respected. Who today would deny that was the right choice for America's future? The children of today's migrants born on U.S. soil are also part of America's future, and their birthright includes the 14th Amendment that guarantees freedom for us all. We should honor that birthright.

ADDENDUM for ACSblog:

It is sad and interesting, but not very surprising, that extremist rightwing attacks on birthright citizenship have recently broken through into the top leadership of the Republican Party, including Senate Minority Leader Mitch McConnell (R-KY), Sen. Lindsey Graham (R-SC), and Sen. John McCain (R-AZ), the 2008 presidential nominee.

The latter two were previously viewed as "moderates" on immigration and other issues (Graham, just a few days ago, was one of only five Republicans voting to confirm Justice Elena Kagan). About half the Republican members of the House are now co-sponsoring H.R. 1868. This is fast becoming an orthodox and dominant position within the Republican Party (pushed by its angry "Tea Party" faction), a truly sickening historical irony as noted above. Graham has voiced outright support for amending the 14th Amendment to repeal birthright citizenship for children of illegal immigrants. McCain, McConnell, and others say the idea deserves a hearing.

But the issue causes great discomfort for Republican strategists with a grip on long-term reality. They know this noxious proposal (deeply offensive to most Latino Americans, as it is to many other Americans) poses extreme electoral danger to Republicans. McCain may find this issue (like his betrayal on fighting global warming) helps him win a contested Republican primary in Arizona, and perhaps even a general election (this year). But as Latinos form a steadily growing part of the voting population in much of the country, especially southwestern GOP strongholds like Texas and Arizona, Republicans face a devastating political hangover from this particular cup of tea.

The justifiably angry Latino reaction to Republican immigrant-bashing in California in the 1990s played a huge role in that state's dramatic shift from proud supporter of native sons Nixon and Reagan, to swing state, to the Democratic stronghold we know today. Many political observers think the same thing could already be happening in Texas, which explains why most Texas Republicans, including former President George W. Bush and even current far-right Gov. Rick Perry, have tried to tread far more carefully on the subject.

But apparently Senators Graham, McCain, McConnell, and an increasing number of other top Republicans just don't care. In order to appease the Mad Hatters of the Tea Party, and their own rightwing constituencies in states like Arizona and South Carolina, they are willing not only to betray the greatest historical legacy of their own party, but also to endanger its very future. To which I would say (echoing a certain former Republican president), "Bring it on!"

Constitutional Interpretation, Immigration