Born in the U.S.A.

The source: “Defining ‘American’: Birthright Citizenship and the Original Understanding of the Fourteenth Amendment” by James C. Ho, in ___Green Bag___, Summer ­2006.

According to a recent poll, 49 percent of Americans believe that the U.S.-born child of an illegal alien should not be entitled to U.S. citizenship. Removing this right would take away one of the magnets drawing illegal immigrants into the country, say critics, and relieve the states and localities of costly outlays for schools and social services. Some legislators and legal scholars say it can be done. But there’s a major barrier: the Fourteenth Amendment. James C. Ho, a former chief counsel of the U.S. Senate Judiciary Subcommittees on the Constitution and Immigration who is now an attorney in Dallas, says, “Text, history, judicial precedent, and Executive Branch interpretation confirm” that citizenship is granted exactly as the amendment says, to “all persons born or natural­ized in the United States, and subject to the jurisdiction thereof,” including the offspring of illegal ­aliens.

Ratified in 1868, the Fourteenth Amendment overturned one of the central holdings of the Dred Scott decision (1857), which had denied citizenship to the ­American-­born child of a slave. But though the “birth­right citizenship” principle is based on English common law, there was vigorous debate about including the clause in the amendment. Senator Edgar Cowan ­(R-­Pa.), likely sensitive about a large Gypsy population in his home state, wanted to ensure that “if [a state] were overrun by another and a different race, it would have the right to absolutely expel them.” Congress withheld the right only from Native Americans (who were thought to have sovereign status within the United States) and, in keeping with long-standing international practice, foreign nationals on diplomatic ­missions.

The first notable court challenge was United States v. Wong Kim Ark, in 1898. Wong Kim Ark, born in San Francisco to two Chinese parents, had traveled to China on a temporary visit and was denied reentry on the grounds that his parents’ alien status made him a noncitizen. The Supreme Court, in a 6–2 decision, swept aside the government’s argument, holding that the Fourteenth Amendment upheld the “ancient and fundamental rule.” To deny citizenship to children “of citizens or subjects of other countries, 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,” the Court ­added.

In 1982, in a 5–4 decision in Plyler v. Doe, the Court ruled that Texas could not deny free public education to undocumented children, and, says Ho, “all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike” (emphasis his). More recently, Yaser Hamdi, an alleged Taliban fighter, was deemed by the courts to be “an American citizen” because he had been born in Louisiana, even though “his parents were aliens in the U.S. on temporary work visas.”

Despite the history of judicial affirmation of birthright citizenship, it remains a political football. Pro-­immigration members of Congress may allow repeal legislation to be attached to a comprehensive immi­gration reform package as a way to win votes, assuming that the courts will strike it down anyway. Says Ho: “Stay tuned: Dred Scott II could be coming soon to a federal court near you.”