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Taking Away Birthright Citizenship: First Chinese, Now Latinos? By Roger Algase

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On April 29, Chairman Bob Goodlatte (R-Va) of the House Judiciary Committee opened hearings by one of its subcommittees on the subject: Birthright Citizenship: Is it the right policy for America?

Anyone who has read the 14th Amendment to the United States Constitution might be forgiven for thinking that this question was resolved almost 150 years ago when that amendment was enacted including the phrase that Goodlatte repeats in his opening statement:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Goodlatte,however, in the same opening statement, seizes on the phrase "subject to the jurisdiction thereof" to argue that the question whether the writers of the Constitution meant this to apply in all circumstances is "far from settled." He also asks if it is the right policy for America today.

But in reality, this issue was settled long ago by the US Supreme Court, in the 1898 case of US v. Wong Kim Ark, which Goodlatte also mentions in his statement. That case, in essence, held the 14th Amendment means what it says and applies, with the limited exception of children of foreign diplomats, to every child born on US soil.

In the Wong case, the Court also held that universal birthright citizenship was the right policy for America, at least as mandated in our Constitution. The two dissenting Justices had vigorously argued that universal birthright citizenship was the wrong policy for America, because it would grant birthright citizenship to US-born children of "Mongolian" race.

Why is Chairman Goodlatte so eager to revisit a long settled issue that was inextricably tied up with the question of racial equality, and which was decided in the Wong case against the background of the infamous Chinese exclusion laws mandating that no one of Chinese ethnicity could ever become a naturalized US citizen?

Why does Chairman Goodlatte also cite another 19th Century Supreme Court case, Elk v. Wilkins, denying citizenship to a US-born Native American? What is the point of reopening and digging up long buried racial controversies from one of the darkest periods of American legal history?

Is it because so many of today's American-born children who would be deprived of birthright citizenship if America changed its policies to bring them more in line with other "G-20" (i.e. mainly white) countries (as Goodlatte suggests might be appropriate) just happen to be Hispanic?

Is Goodlatte worried that when these children grow up, they will be able to vote and enable Hispanic and other minority communities to have more of a voice in running America's affairs, including immigration policy? This was a big concern of American politicians over a century ago when they tried to marginalize Chinese communities by providing that legal Chinese immigrants could never be naturalized as US citizens, solely because of their ancestry.

Does America, as if our own supply of prejudices were not sufficient, really need to import prejudices from foreign countries' citizenship laws into our own law? I refer, for example, to the long-standing German policy of denying birthright citizenship to the German-born children of (legal) Turkish immigrants. Many other foreign countries have analogous policies, even though I understand that the German policy has recently changed to resemble America's more closely, if I am correct.

Are not equal rights and opportunity for all people regardless of race or parentage something about which America has more to teach the world than to learn from it? Is it purely a coincidence that this sudden interest in other countries' citizenship laws is being promoted mainly by anti-immigrant groups such as Numbers USA and Center for Immigration Studies (CIS)?

In his opening remarks, Goodlatte might have done well to refer to a much more recent action of the House of Representatives, H. Res. 683 (June 18, 2012). This resolution, along with a companion one in the Senate, apologized for Congress' having enacted the Chinese exclusion laws, including no less than 5 separate 19th century statutes, each harsher and more restrictive than the last.

These laws were extended over time to deny naturalization rights to legal Chinese immigrants, solely on racial grounds, until they were finally repealed in 1943 (in order to further US war objectives, similar to the reasons for the 1863 Emancipation Proclamation).

Does Mr. Goodlatte, in addition to withdrawing American citizenship from millions of Hispanic and Asian US-born children, also want to withdraw the House's 2012 apology for having passed the Chinese exclusion laws beginning more than 130 years ago, in 1882?


Goodlatte and his colleagues on the Committee might need to think more seriously about the wisdom of trying to revisit or disturb the 14th Amendment's birthright citizenship protections for all US-born children, regardless of ethnicity or parentage. This true no matter how tempting it may be to pander to prejudice against Latino and other minority immigrants among certain sectors of the US electorate today.

As a final note, Goodlatte also criticizes "birth tourism". This phrase refers specifically to women from China who visit the US with legal visas in order to give birth to their children in this country and then return home with their newborn US citizen children. Their purpose is to enable their children to avail themselves of American freedom and opportunity (including the right to have more than one child - a right harshly repressed in China today).

Goodlatte's unconscionable attack on these visitors, who are in total compliance with our laws, also brings back chilling memories of the now rejected, long since abolished, Chinese exclusion laws. Stirring up animosity against people who come to the US legally, and for an entirely legal purpose, has nothing to do with the ostensible pretext for revisiting or changing our birthright citizenship laws, which is, allegedly, to discourage illegal immigration.

Hasn't America already had more than enough experience with the Chinese exclusion laws, which Congress has finally had to apologize for? Why would America wish to revive the narrow and bigoted spirit, if not the exact letter, of these infamous late 19th century and early 20th century statutes now, in what we would like to think of as a more open, tolerant and diverse 21st century?
_____________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been helping to protect the legal rights of immigrants applying for work visas and green cards through employment or family sponsorship for more than 30 years. His email is algaselex@gmail.com

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Updated 05-12-2015 at 09:29 PM by ImmigrationLawBlogs

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  1. Tobias Nojob's Avatar
    "Hasn't America already had more than enough experience with the Chinese exclusion laws, which Congress has finally had to apologize for? Why would America wish to revive the narrow and bigoted spirit, if not the exact letter, of these infamous late 19th century and early 20th century statutes now, in what we would like to think of as a more open, tolerant and diverse 21st century?"

    The answer is very simple:
    The American populace is easy to manipulate and subdue; Americans are extremely gullible and incapable to think for themselves (trained not to think critically); they are utterly ignorant about their own legal system and the Constitution as well.

    In fact, Leo Strauss' categorization of society seems to apply to the American populace: The Vulgar Many
    "The Vulgar Many, are lovers of wealth and pleasure. They are selfish, slothful, and indolent. They can be inspired to rise above their brutish existence only by fear of impending death or catastrophe."

    As always, it is imperative to reiterate that willful ignorance displayed by members of Congress, State officials and the political class while dealing with the immigration issue is an irrefutable evidence of constituents? stupidity (specifically those who are fervidly opposed to any sort of temporary relief granted by the Executive Branch to certain unlawfully present immigrants) and excoriating the current President on immigration is not going to elevate their brutish status.

    "People as uninformed and as gullible as Americans have no future. Americans are a dead people that history is about to run over." Dr. Paul Craig Roberts (http://www.paulcraigroberts.org/2014/11/20/pcr-interviewed-russia-italy/)
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