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In my last (August 28) post, I examined an argument which is frequently used by opponents of birthright US citizenship to the effect that the 14th Amendment to the US Constitution was only meant to guarantee this right to African-American children, who had been denied citizenship under the infamous pre-Civil War Dred Scott decision, but was not meant to protect US born children belonging to other ethnic groups. I showed that under the landmark Supreme Court decision in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the 14th Amendment was meant to guarantee birthright citizenship to all U.S. born children (with certain very limited exceptions, such as the children of foreign diplomats), regardless of race or color.
I will now turn to another myth which is popular among birthright citizenship opponents, namely that the 14th Amendment makes birthright US citizenship for American-born children dependent on the citizenship or immigration status of their parents. According to this argument, the phrase "subject to the jurisdiction" of the United States in the 14th Amendment was meant to exclude the US-born children of unauthorized immigrants, or even of foreign citizen parents who are in the US legally, from the guarantee of birthright US citizenship.
In its most extreme form, this argument is phrased by Attorney Ken Klukowski, writing for the right-wing breitbart.com as follows:
"A person who is 'subject to the jurisdiction' of the United States is a person who is not 'subject to any foreign power' - that is a person who was entirely native to the United States, not the citizen or subject of any foreign government."
It is true, as Klukowski contends, that there was US legislation in effect at the time the 14th Amendment was adopted containing the above restrictive language. and that, arguably, that language might be subject to the far-reaching interpretation that he gives to it. But this restrictive phrase was in the 1866 Civil Rights Act, not the 14th Amendment, which left the "subject to any foreign power" language out.
It is important to avoid confusing the 1866 statute, which has long since been superseded, with the 14th Amendment to the Constitution, which is still in effect.
Since the above restriction was not in the 14th Amendment, which was adopted in 1868, the Supreme Court, in Wong Kim Ark, supra, held that the purpose of the 14th Amendment was merely to reaffirm the English common law of citizenship, which was the basis of American citizenship law and had been in effect in England for centuries before the US Constitution was adopted.
Therefore, the Wong decision cited the common law Commentaries of Chancellor Kent with approval as follows:
"Natives [i.e. citizens] are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors..." (Italics added.)
This might come as a disappointment to Donald Trump. the anti-birthright citizenship true believers at breitbart.com and to some other politicians and pundits who are attempting to make birthright citizenship a campaign issue, But absent the extremely unlikely possibility that this 117-year old precedent could one day be overruled by a future radical right wing Supreme Court majority, it is the law of this land that parents' nationality or immigration status is completely irrelevant to the Constitutional guarantee of birthright American citizenship to all children born in the US.
My upcoming post will delve further into the meaning of "subject to the jurisdiction", as interpreted by the US Supreme Court in Plyler v. Doe (1982).
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping mainly skilled and professional immigrants obtain work visas, green cards, and US citizenship. His email address is firstname.lastname@example.org
Updated 09-04-2015 at 06:51 PM by ImmigrationLawBlogs