By Scott Forsyth
The Daily Record Newswire
Who is a citizen of the United States? The first sentence of the Fourteenth Amendment is very explicit: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
Congress and the states ratified the Amendment in 1868 to reverse the dreadful holding of Dred Scott v. Stanford, 60 U.S. 393 (1857), that no individuals of African descent, free or slave, could ever become citizens.
The amendment is not limited to the former slaves or to persons already living and residing in the country. It casts a wider net, granting citizenship to all those born within the United States before and after 1868.
Hardline immigration opponents dislike the amendment and dismiss the children born here of undocumented aliens as “anchor babies.” In the words of one opponent, an Arizona legislator, “it takes more than walking across the border to become an American citizen. It’s what in our souls.” He did not explain how you or I can plumb a person’s soul and he did not tell us what to look for.
Several law professors and attorneys general believe that “subject to the jurisdiction” of the United States limits the grant of birthright citizenship. They are right but not in the way that they wish.
In 1898 the U.S. Supreme Court addressed the meaning of the phrase in United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Wong was born about 1870 in California, of parents who were Chinese citizens. In 1882 Congress enacted one of its nastier statutes, the Chinese Exclusion Act. Basically it barred persons of the Chinese race from entering or reentering the country.
Wong’s parents returned to China in 1890. Wong visited them in 1894. When he returned, the government denied him entry and detained him, citing the Exclusion Act. He countered that he was a United States citizen under the Fourteenth Amendment and had a constitutional right to reenter. All courts, including the Supreme Court, agreed with him.
The court construed the “subject to” language in light of English common law on who owed allegiance to the King and who was subject to his protection. Everybody “within the kingdom,” including aliens, qualified, with two exceptions: Children born of foreign diplomats and children born of hostile soldiers occupying the realm, Id. at 657-659.
Similarly, all persons within the United States were entitled to the protection of the government, with the same two exceptions. To hold otherwise “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States,” Id. at 694.
Since Wong’s parents were not diplomats, he was a citizen.
How do the opponents of birthright citizenship propose to circumvent the holding of Wong? Some would have Congress simply pass a bill adding another exception to the “subject to” language for the children of foreign visitors and undocumented aliens. This Congress cannot do without going through the full amendment process.
Other opponents want states to issue two types of birth certificates, one for the children of citizens and one for the children of undocumented aliens, or just not issue birth certificates for the children of undocumented aliens. The opponents do not explain how this discrimination based on alienage would survive an Equal Protection challenge.
Legalities aside, birthright citizenship is good policy. Every child, regardless of his background, is born with the same rights as every other person. What the child achieves rebounds to our glory. Erecting barriers to achievement based on citizenship diminishes that glory.
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
