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Inside, confidential and off the record


Birthright citizenship

An 1898 US Supreme Court case confirmed birthright citizenship



The plain language of the 14th Amendment to the US Constitution explicitly provides for birthright citizenship. Nonetheless, on Oct. 30, president Donald Trump revealed that he intends to issue an executive order that would bar children of foreign parents from becoming Americans by virtue of birth on US soil.

With this revelation, Trump ignited debate about a long-settled issue, one the Supreme Court resolved 120 years ago in favor of birthright citizenship, though at the time the country's laws were explicitly exclusionary and racist.

A San Francisco native comes home

In 1898, the Supreme Court decided  US v. Wong Kim Ark.  Wong was born in San Francisco to Chinese parents in 1873. He lived in the US all his life. His parents eventually left the country and he visited them in China in his late teens and again in his early twenties. Upon his return to the US in 1895, a customs agent refused him entry, stating that Wong was not a US citizen based on the Chinese Exclusion Acts , federal laws that barred Chinese immigration, originally passed in 1882 and extended in various forms until 1943.

Wong challenged the exclusion, arguing that he was a US citizen based on the 14th Amendment. The amendment, adopted in 1866, provides that “[a]ll 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.” Wong argued that the Chinese Exclusion Acts, which barred immigrants, did not apply to him because he was American by virtue of birth on US soil.

One thing was clear, the Supreme Court noted in the majority opinion—a US citizen can't be denied entry to the country based on exclusionary immigration laws. “It is conceded that, if [Wong] is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him,” the majority wrote.

So, the question the justices had to answer was whether the 14th Amendment applies to any child born in the US, or whether it had some built-in limitations not evident from the plain language of the law.

History, intent, and the 14th Amendment

Wong's opposition argued that “accidents of birth” could not confer citizenship. But ultimately the high court disagreed with this claim, finding that the 14th Amendment's declaratory language left no question as to who it protected.

The justices also examined the history of birthright citizenship in English and international law. Jus soli,  or citizenship based on birth in a territory, was well-established for centuries in England, they noted. And in fact, “accidents of birth” had long conferred citizenship. The court cited a pamphlet written in Philadelphia in 1853 that pointed out, “The right of citizenship… is incident to birth in the country… The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”

As to the US government's intent when the 14th Amendment was passed, the majority concluded that “in the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.”

Wong was not an immigrant, the high court ruled, because he was born in the US to non-diplomats. His parents' origins and the exclusion of Chinese immigrants didn't change that fact. It was evident to the justices that the 14th Amendment contained no secret limitations that contradict the clear declaration in the law. The majority opinion states:

As appears upon the face of the amendment, as well as from the history of the times, this 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… It is declaratory in form, and enabling and extending in effect.

While the amendment's main purpose was to establish the citizenship of free black people after the abolition of slavery, that in no way created other limitations on citizenship for children born in the US. “[T]he opening words, ‘All persons born,' are general, not to say universal, restricted only by place and jurisdiction, and not by color or race,” according to the majority opinion. So, the court concluded that “it is only necessary that [one] should be born or naturalized in the United States to be a citizen of the Union.” 

Fast forward 120 years

When  US v. Wong Kim Ark  was decided in 1898, the US was barely a century old. Women could not vote. Chinese immigration was illegal. Slavery had only been abolished 33 years before. The high court had just determined two years prior to Wong's case that blacks were “separate but equal” in the 1896  Plessy v. Ferguson  decision , determining that segregation in public facilities was legal.

Still, even then, despite a prevailing climate of racism and sexism, when there were countless legal and institutional barriers to equality, the Supreme Court recognized that citizenship of children born on US soil was recognized by the 14th Amendment.

Now, Trump wants to turn back the clock on birthright citizenship as part of his clampdown on immigration. On Oct. 30, he falsely claimed that no other nation provides this right, although in fact one in four countries do so.

The following day, Trump told the White House press pool, “Birthright citizenship is a very, very important subject. In my opinion, it's much less complex than people think.” He contends that the process for denying the right is simple, arguing:

“I think it says it very loud and clear in the Constitution, that you don't have to go through the process of whatever they're talking about. And by the way, this is not a constitutional amendment. You don't need a constitutional amendment for birthright citizenship. I believe that you can have a simple vote in Congress, or it's even possible, in my opinion—this is after meeting with some very talented, legal scholars—that you can do it through an executive order.”

Should Trump issue that order, it will be challenged and make its way to the Supreme Court. And  US v. Wong Kim Ark will come up in arguments. Though the precise context of that 19th-century case is very different, and the facts of any new matter will be distinct as well, it seems extremely unlikely that 21st-century justices will interpret the 14th Amendment or the legal precedent supporting birthright citizenship as more restrictive today than jurists did in 1898.

Still, by stating his intentions and igniting debate about a settled issue, challenging what Americans have long considered to be givens, the president creates a new regressive reality every day. Instead of progressing, this nation of immigrants is forced to rehash the past, look backward, and try to justify its national identity. In this sense then, before any order has been signed, Trump's attempts to go back in time have already succeeded.


Ephrat Livni / Quartz / November 1, 2018

Original article

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