Strange Brew: Immigration and the Tea Party’s Efforts to Deny the Constitution’s Guarantee of Birthright Citizenship

This is the fourth installment of Constitutional Accountability Center’s series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Though the legal battle over Arizona’s controversial new immigration law is only just heating up, state legislators affiliated with the Arizona Tea Party are reportedly working on yet another piece of tough legislation aimed at stemming illegal immigration, this one intended to prevent the children of undocumented immigrants from obtaining “birthright citizenship.”  Buoyed by anti-immigrant sentiment and general frustration in the state, these Arizona legislators are undeterred by the fact that such citizenship is guaranteed by our Constitution, in the strikingly clear language of the Fourteenth Amendment that reads:

“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.”

Some, like State Senator Russell Pearce in Arizona, refuse to accept that this language covers children of undocumented immigrants.  Other prominent Tea Party allies – including Rand Paul (of Kentucky) and Rep. Duncan Hunter (of San Diego) – have called for an outright repeal of this portion of the Fourteenth Amendment.  But Tea Partiers who want to read the Amendment’s citizenship clause narrowly to allow discrimination against U.S.-born children of undocumented immigrants are simply wrong as a matter of constitutional text and history.  And those who want to repeal the Fourteenth Amendment’s guarantee of equal citizenship threaten core constitutional values and ignore the reasons why the framers of the Amendment enshrined birthright citizenship in the Constitution in the first place.

Contrary to claims made by the Tea Party and other conservatives, the 19th century framers of the Fourteenth Amendment unambiguously intended to grant equal citizenship to children born in the United States without regard to the status or origins of their parents.  It was clear at the time the Amendment was drafted and ratified that the birthright citizenship clause would apply to a child whose parents were uninvited immigrants or a child born to parents brought to the United States as part of illegal slave trafficking, just as it would to a child whose parents were descended from English pilgrims who came over on the Mayflower.

While the immigration laws at the time were not as restrictive as they are now, much of the 19th century hostility toward immigrants, mostly Chinese and Roma or gypsies, was similar to the resentment and distrust leveled at illegal immigrants today: concern that immigrants would take away good jobs from U.S. citizens (coupled with a willingness to allow immigrants to take jobs perceived as undesirable); fear of waves of immigrants “invading” or overtaking existing American communities; and distrust of different cultures and languages.  These fears were expressed by some members of the Reconstruction Congress — who noted that birthright citizenship might expand the numbers of immigrants who would come to America, even those who committed “trespass” within the United States — but were not allowed to influence the requirements for citizenship written into the Fourteenth Amendment.

Drafted and ratified against this backdrop of prejudice against newly freed slaves and various immigrant communities, the Fourteenth Amendment provides that citizenship is granted automatically to anyone, regardless of race or ancestry, born within the jurisdiction of the United States.  The “subject to the jurisdiction of the United States” requirement was meant to exclude children born to parents who were technically on U.S. soil, such as diplomats or occupying armies, but were, by operation of certain legal principles like diplomatic immunity, considered not to really be within the United States.  As explained in an exchange on the Senate floor, Senator Benjamin Wade acknowledged a colleague’s suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating “I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language.”  He went on to explain that children of foreign ministers were exempt not because of an “allegiance” or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil (which is why diplomats and their families residing in the U.S. generally cannot be arrested or prosecuted in our courts).  This has nothing to do with undocumented immigrants who are on U.S. soil and fully subject to prosecution in our courts if they are apprehended for criminal activity.

Case law immediately following the ratification of the Fourteenth Amendment confirms this straightforward reading of the Citizenship Clause.  In the 1886 case of Look Tin Sing, the court held that a child of Chinese parents—who still retained their status as Chinese citizens, despite their presence in the United States—was a U.S. citizen under the Citizenship Clause because he was born on U.S. soil.  As the court stated plainly, “It is enough that he was born here, whatever was the status of his parents.”  The Supreme Court affirmed this understanding of the Amendment in United States v. Wong Kim Ark (1897), ruling that a person born in the United States, whatever the immigration status of his or her parents, is a U.S. citizen under the Fourteenth Amendment.

Fixing the conditions of birthright citizenship in the Constitution, rather than leaving them up to constant revision or debate, befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day. The idea that the states may legislate away birthright citizenship for children born to undocumented immigrants would have been anathema to the Reconstruction Framers.

The provision of citizenship by right of birth was constitutionalized to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day, and logically so.  After cataloguing the discriminatory enactments of the slaveholding states, it would have made no sense for the Reconstruction Framers to have made the citizenship of freed slaves open to easy revocation if these states regained legislative power.  Congressman Giles Hotchkiss specifically raised this fear when discussing the Fourteenth Amendment, noting the possibility that “rebel states” could gain power in the Congress and strip away the rights envisioned by the Reconstruction Framers, unless these rights were “secured by a constitutional amendment that legislation cannot override.”  The wisdom of the Reconstruction Framers in placing the conditions of citizenship above majority action was confirmed when exclusionary immigration laws were passed just after the Fourteenth Amendment was ratified. Had the racial animus of the Chinese Exclusion Laws, passed in the 1880s, been incorporated into the text of the Citizenship Clause, the Amendment would be a source of shame rather than an emblem of equality.  The current situation in Arizona—where the politicians behind the state’s recent law directing police to check the immigration status of anyone they suspect is in the country illegally are now setting their sights on passing a law that would prevent children of non-U.S., mostly Hispanic, citizens from obtaining birth certificates—is exactly what the Fourteenth Amendment was meant to avoid.

The principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, also demonstrate that the call to repeal the Citizenship Clause threatens core constitutional values.  The Supreme Court’s infamous Dred Scott decision—which was specifically overruled through the Citizenship Clause—demonstrates why the Reconstruction Framers drafted the Clause to place the class of persons eligible for citizenship beyond debate. Dissenting from the Dred Scott majority’s opinion that, under its view of the Constitution, “citizenship at that time was perfectly understood to be confined to the white race,” Justice Benjamin Curtis noted the potential dangers if Congress were empowered to enact at will “what free persons, born within the several States, shall or shall not be citizens of the United States.”  Curtis observed that if the Constitution did not fix limitations of discretion, Congress could “select classes of persons within the several States” who could alone be entitled to the privileges of citizenship, and, in so doing, turn the democratic republic into an oligarchy.

The framers of the Fourteenth Amendment believed that providing citizenship to persons born in the United States without regard to race or color was a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Inalienable rights are not put to a vote, and thus, as explained by the Supreme Court in the late 1800s, the Fourteenth Amendment “conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.”

Tea Partiers should not be allowed to claim that they take the Constitution seriously while at the same time twisting the document’s meaning and calling for repeal of some of the charter’s most meaningful provisions.  Everyone recognizes that there are problems in our immigration system in this country, but the answer to these problems is most assuredly not to turn our back on the Constitution’s fundamental promise of birthright citizenship.  The Citizenship Clause is our best hope for preserving equality, security and the American Dream.

(For a more detailed analysis and a thorough refutation of these claims, and others, please see our ACS Issue Brief “Birthright Citizenship: A Constitutional Guarantee.”)