Immigration and Citizenship

Latest assault on Constitutional birthright citizenship is clever propaganda but rotten history

With President Trump’s unprecedented rhetorical and policy assault on immigrants, opponents of the 14th Amendment to the Constitution, which grants birthright citizenship, have come out of their caves, seeing this as their best opportunity to repeal this longstanding right.

Witness the recent Washington Post op-ed by Michael Anton, former Trump administration official and current Hillsdale college lecturer. He writes, “The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity…”

His op-ed is part of a coordinated effort to narrow the definition of U.S. citizenship and deny the birthright of millions of Americans, including not only the estimated 4.5 million children born to at least one parent who resides illegally in the country but also to millions more whose parents reside here legally as permanent legal residents, students, and temporary visa holders.

This effort, spearheaded recently by scholars at the Claremont Institute—including Edward Erler, whom Anton references— depends on a tortured reading of the Amendment and the Congressional debate that led to its enactment. Anton hangs his argument, as do others, on the Amendment’s phrase “under the jurisdiction thereof” — claiming that illegal immigrants are not under U.S. jurisdiction. As I have argued at length, this interpretation depends on distorting the full Senate debate over the issue.

To advance his claims, Anton misrepresents the debate surrounding the inclusion of those four words. Most of the arguments centered on whether Native Americans were to be given citizenship, given treaty obligations entered into between the United States and Indian tribes. Yet Anton focuses instead on a rather short discussion of which persons born to foreign-born parents would be included. In the process, he misquotes Sen. Jacob Howard of Michigan, who proposed the clause, claiming Howard said that “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers” should not be granted birthright citizenship.

Anton’s rendering is clever, dishonest, and used by virtually all defenders of this distorted interpretation of the 14th Amendment. Sen. Howard did not utter the word “or,” as Anton’s use of brackets in his Washington Post piece acknowledges. Taking “or” out of the phrase completely changes its meaning. Without “or,” the phrase does not exclude all foreigners and aliens (the latter word included in apposition to foreigners as a simple synonym) but only those who belong to diplomats’ families, a matter of long-established practice. Furthermore, Anton and others who use the same misquote abridge the Howard quotation to leave out the rest of Howard’s statement that citizenship “will include every other class of persons born in the United States.”

Though the discussion on this topic was relatively short, it did reflect some of the anti-immigrant animus of the era. The “Know Nothing” movement had made immigration a major issue in political campaigns a decade earlier and anti-immigrant sentiment was still widespread at the time of the debate. In language eerily foreshadowing today’s ugly rhetoric on immigration, Sen. Edgar Cowan of Pennsylvania objected to the Amendment, because it would give birthright citizenship to children born to: “people who invade her borders; who owe to her no allegiance; who pretend to owe her none; …who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen.” Cowan’s specific reference was to “Gypsies,” but he also inveighed against the dangers of giving citizenship to children born to members of “the Mongolian race,” or “by a flood of Australians, or people of Borneo, man-eaters or cannibals, if you please….”

Nonetheless, the Amendment’s supporters quickly shot down Cowan’s objections. Sen. John Conness of California noted, the purpose of the Amendment was this: “Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all understanding and comprehension.” And others concurred, as Elizabeth Wydra details in her excellent summary “Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded.”

The Supreme Court has consistently upheld the 14th Amendment to guarantee citizenship to children born in the United States, including an acknowledgment by no less than the late Justice Antonin Scalia in his dissent in a terrorism-related case involving an accused born in the U.S. to a Saudi working as a petroleum engineer. Anton twists the most germane, Wong Kim Ark (1898), to suit his purpose. Contra Anton, Wong Kim Ark did not involve the right of a child born to “legal residents,” since no such distinction applied at the time Wong’s parents arrived in 1870. Wong’s parents were laborers who had lived in the U.S. for three years at the time of his birth and later returned to China after the passage of the Chinese Exclusion Act. In Wong Kim Ark, the Court rejected the very arguments being advanced by Anton and other opponents of birthright citizenship, citing the clause of the 14th Amendment on jurisdiction that Anton misinterprets.

Anton’s assertion, shared by other opponents of the 14th Amendment, that Congress, through simple legislation, and the President, through executive order, can deny citizenship to millions of Americans is an astounding assault on the Constitution.

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