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Supreme Court Has Rejected Attempts to Limit Birthright Citizenship. By Roger Algase

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This post will continue my August 21 post, in which I introduced the topic of two egregious distortions of the 14 Amendment's guarantee of birthright citizenship for virtually all US born children, regardless of their parent's nationality or immigration status in the United States. I also suggested that America's history of racism and prejudice against unpopular minorities, such as African-Americans during the time of slavery, Chinese and other Asians during the time of the exclusion laws in the late 19th and early 20th centuries, and Latino and other "third world" immigrants today, has had a great deal to do with attempts to impose unreasonably narrow, distorted interpretations of our laws relating to qualifications for birthright US citizenship.

I will now examine two of the distorted readings of the 14th Amendment which some immigration opponents, including a number of Republican presidential candidates, are using as arguments to restrict birthright citizenship in order to exclude the US born children of unlawful, or even legal temporary, immigrants, from Constitutional protection.

(According to the Huffington Post, Wisconsin Governor Scott Walker has reportedly just opted out of this legal charade in an interview with George Stephanopoulos, showing that Walker, though an anti-immigrant hard liner in other respects, has more integrity and common sense than some of his rivals.)

The first argument being bruited about by the restrictionistas is that the 14th Amendment was only meant to confer birthright US citizenship on the children of African American former slaves, or African Americans in general, but not on children of other ethnicities.

This argument is utter nonsense, as shown by long standing Supreme Court precedent.

The first section of the 14th Amendment to the Constitution begins:

"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."​

Since even Donald Trump would have to admit that the children of unauthorized immigrants are persons, and that a baby who is born in any one of the 50 states (yes, Donald, including Hawaii) is born "in the United States" (with the only exception, according to Trump's "birther" ideology, being President Barack Obama), the only phrase that the restrictionistas can seize on in order to try to limit the scope of the amendment is the phrase: "subject to the jurisdiction thereof".

If the 14th Amendment had tracked the language of the 1866 Civil Rights Act, enacted in order to overturn the notorious 1857 Dred Scott decision which had held that no person of African descent could ever become a US citizen, there might have been at least a marginally tenable argument to the effect that the amendment was meant to guarantee birthright citizenship to African-American children only, not the children of immigrants.

This argument was in fact used against granting birthright citizenship to the children of Chinese immigrants, who were barred by law from becoming naturalized US citizens beginning in the late 19th century. However, the 14th Amendment did not follow the language of the 1866 Civil Rights Act.

The 1866 Civil Rights Act provided that:

"all persons born in the United States and not subject to any foreign power..." (Italics added) were citizens of the US. (There was a specific exception for Native Americans who were exempt from taxation.)

That clause, admittedly, could have been read to exclude the children of Mexicans, Chinese, and other immigrants, who were arguably subject to a foreign power, under the citizenship laws of the various countries of their parents' birth. However, even under that statute, it was clear that African-Americans were not the only ethnic group that was intended to benefit from the guarantee of birthright citizenship. The 1866 Civil Rights law also provided:

"and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude...shall have the same right..." (Italics added.)

Therefore even though the primary purpose of this statute may have been to guarantee birthright citizenship to African-American former slaves, they were by no means the only people who were intended to benefit from this law.

Moreover the 14th Amendment, as shown above, did not include the restrictive language of the Civil Rights Act, excluding US born children who were subject to a foreign power from birthright US citizenship. Instead it only contained a requirement that US born children must be subject to the jurisdiction of the United States.

As the Supreme Court emphatically held 114 years after enactment of the 14th Amendment, in the 1982 case of Plyler v. Doe, 457 U.S. 212, subject to the jurisdiction means being subject to the laws of the United States. This decision also held, as will be discussed in more detail in an upcoming post, that the above term includes immigrants, even those who are in the US without legal status.

("Jurisdiction" is derived from the Latin words for "law" and "to say". In ancient Rome, it only referred to authority to say what the law is, i.e. to render judgment. It had nothing to do with the concept of allegiance or citizenship. Citizenship may have affected the contents of a judgment, but not the power to render it. St. Paul, for example, was exempt from crucifixion due to his Roman citizenship, but was executed anyway - by beheading, a procedure still carried out only a few days ago among ancient Roman ruins by ISIS, against an 82-year old archaeologist.)

If there had ever been any doubt about the fact that the 14th Amendment's guarantee of birthright citizenship was meant to include US-born children of every ethnic background, not just African-Americans, the Supreme Court laid this question to rest long ago in the 1898 case of US v. Wong Kim Ark, 169 U.S. 649. as follows:

"Its [the 14th Amendment's] main purpose doubtless was, as has often been recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford (1857) [citation omitted]...But the opening words "All persons born" are general, not to say universal, restricted only by place and jurisdiction, and not by color or race - "

So much for the baseless, meretricious argument that the 14th Amendment's guarantee of birthright citizenship for all US born children was only intended to include the descendants of African-American former slaves.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants obtain work visas, green cards and US citizenship for more than 30 years. His email address is

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Updated 08-24-2015 at 08:56 AM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    Birthright citizenship presents two distinct and very different issues. The first is the legal question of whether the 14th amendment confers citizenship on the children of undocumented aliens who are born in the United States. The second is a policy question, should the children of undocumented aliens who are born in the United States receive US citizenship? If enough congressmen decide as a policy matter that birthright citizenship should not include children born to undocumented aliens, they will be able to revise the language of the 14th amendment to exclude them. But how likely is it that the present interpretation of the 14th amendment will be changed or that Congress will revise the language of the 14th amendment? Frankly, I don't think either is likely enough to warrant all of the attention that has been given to the subject of birthright citizenship. Do you?
  2. ImmigrationLawBlogs's Avatar
    Nolan seems to be saying, in essence, that the Republican plan to abolish birthright citizenship makes no sense because it has little or no chance of ever being adopted. I agree.

    But do the other linchpins of the Republican immigration plan make any sense either? Mass deportation of 11 million people, a Berlin Wall alon the southern border (or northern one - even more absurd); police state style "interior enforcement", including tracking immigrants as if they were FedEx packages, not human beings - just one irrational and nonsensical proposal after another - these things are never going to happen, and the Republican candidates all know it - including Donald Trump. So why is one of America's two major political parties pushing an immigration plan which is 50 per cent wishful thinking and the other 50 per cent sheer delusion? Whom do they think they are fooling, except, perhaps, their own base?

    Most irrational of all, the Republican presidential candidates are vying to see which one can make the most outrageous attacks of all on brown immigrants, who are par of the fastest growing demographic in the country. No wonder that Lindsey Graham and a few other sane, rational Republicans are concerned that their party is being led over an immigration cliff by the Know-Nothings who are in control of the GOP's immigration policy.

    Roger Algase
    Attorney at Law
    Updated 09-02-2015 at 09:06 PM by ImmigrationLawBlogs
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