Two Myths About the 14th Amendment and Birthright Citizenship Pt. 1. By Roger Algase
In my August 19 post: Prejudice Fuels the Opposition to Birthright Citizenship, I pointed out that the movement to restrict birthright citizenship to only some, rather than all, US-born children, has always been motivated by prejudice against an unpopular ethnic group, whether African-Americans at the time of the 1857 Dred Scott decision, Chinese immigrants at the time of the late 19th and early 20th century exclusion laws, or Mexican and other Latino immigrants today.
In the 19th and early 20th centuries, merely belonging to a racial group that was regarded as "inferior" or "undesirable" by the white majority was considered to be Constitutionally sufficient as a reason to deny citizenship rights to members of that group, as Chief Justice Roger Taney made painfully clear in the Dred Scott case, and as the Supreme Court did in a line of late 19th century cases upholding the statutory prohibition against allowing Chinese immigrants to become naturalized US citizens.
But in this more "sophisticated" 21st century, it is no longer acceptable to stigmatize entire groups of people as inferior or undesirable as a legal proposition. Politicians and lawmakers now have to look around for euphemisms in order to express prejudice. These euphemisms may be pretty transparent, as when Donald Trump calls Mexican immigrants "criminals" and "rapists" (unless he happens to be sponsoring nearly a thousand of them for legal work visas).
But usually, prejudice attempts to veil itself in more moderate language, such as calling Mexican and other "third world" immigrants "uneducated" (and therefore deserving to be barred from attending school), "poor" (and therefore not deserving to be allowed to work), or living off government benefits (another reason not to allow them to work so they can support themselves and their families, while paying taxes).
In the same way, it is no longer acceptable to argue that unpopular immigrant groups should be denied basic Constitutional rights, such as birthright citizenship for their American-born children, because they are inherently "inferior" or "undesirable". Instead, immigration opponents have to look around for more "neutral" arguments, such as twisting and distorting the Constitution or the way it has been interpreted by the courts.
My upcoming post will look at two myths regarding the 14th Amendment's guarantee of birthright citizenship which are now being used by anti-immigrant politicians as arguments to deny birthright citizenship to the US-born children of unauthorized immigrants, or even temporary legal immigrants.
The first myth is that the 14th Amendment was only intended to guarantee birthright citizenship rights African-American children, who had been excluded by the Dred Scott decision. but not to children from other ethnic groups.The second myth is that the 14th amendment was only intended to guarantee birthright citizenship to the US-born children of immigrants who are in the US as lawful permanent residents, not those who lack legal status or are here with legal, but temporary visas.
Both of these pernicious myths were exploded 117 years ago by the US Supreme Court in U.S. v. Wong Kim Ark 169 U.S. 649 (1898), as my upcoming post will show in more detail.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping primarily skilled and professional immigrants obtain work visas and green cards for more than 30 years. His email address is firstname.lastname@example.org