Many people on both sides of the issue, as it relates to anchor babies and birthright citizenship, cite the 14th Amendment to support their particular view on the subject of illegal aliens and whether or not their children are citizens. In Arizona the debate has intensified as the Legislature debates the passage of Senate Bills (SB) 1308, 1309, and 1611. Additionally, there has been an increase in the debate of birthright citizenship and whether there is a method by which this can be changed. There are various views of the argument; some argue that birthright citizenship is a Constitutional right and cannot be changed without a Constitutional Convention, while I would argue that, in fact, birthright citizenship is statutory in nature and the only requirement to change the status quo is for Congress to clarify the existing statutes through legislation. That is the argument which I will lay out in this article.
First, here are some facts that should be taken into consideration when discussing the issue. 1. The power of establishing naturalization statutes lies with the Legislative Branch under Article I, Section 8 of the Constitution; “To establish an uniform Rule of Naturalization...”
2. The Civil Rights Act of 1866 was passed and became law in April, 1866; it redefined the requirements for citizenship eligibility as it pertained to slaves, former slaves and children of slaves and specifically excluded “Indians not taxed.”
3. The 14th Amendment was ratified on July 9th, 1868. It was designed to codify into the Constitution the provisions passed in the Civil Rights Act of 1866, giving citizenship rights and immunities to the newly emancipated slaves after the Civil War.
4. The 14th Amendment, through the jurisdiction clause, did not give citizenship rights to everyone born in the United States, and did not retroactively apply to all peoples in the US at the time.
Now, let’s step through the events logically.
The Constitution clearly stipulates that naturalization is a power held by the Legislative Branch of the government. As such, it is Congress that decides who can and cannot become a citizen, and under which circumstances citizenship can be granted. Congress is responsible for the regulations of citizenship and modifications of those regulations. If Congress is empowered by the Constitution to establish the “Rule of Naturalization” then it cannot be said that citizenship, whether it be birthright citizenship or naturalization, is a Right as set forth in the 14th Amendment.
The Civil Rights act of 1866 was passed two years before the 14th Amendment. This means that Congress had granted citizenship to all emancipated slaves and their children two years before the 14th Amendment was ratified. The Civil Rights Act of 1866 specifically excluded “Indians not taxed” to avoid giving citizenship to Indians who were members of tribes on reservations who were members of those sovereign “Indian nations.” Indians born within the United States (boundaries) were not considered and were not extended citizenship rights; presumably because they did not have allegiance to the US, rather to their tribe. The point here is that the determination of citizenship was statutory, since at the time of passage of the Civil Rights act of 1866 the 14th Amendment did not exist. Again, this is evidence that citizenship is granted through statutory regulation rather than as a direct consequence of the 14th Amendment.
This begs the question: If slaves were already citizens why was the 14th amendment necessary? I think it is safe to say that Congress wanted to codify into the Constitution the provisions passed in the Civil Rights Act of 1866, giving citizenship rights and immunities to the newly emancipated slaves after the Civil War. By codifying these rights into the Constitution it would prevent any future congress from changing the naturalization statutes in the future and void or jeopardize the rights of emancipated slaves by simple majorities.
During the debate over the amendment Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the "jurisdiction of the United States": [E]very person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase “Subject to the Jurisdiction.” Sen. Reverdy Johnson of Maryland explained the jurisdiction requirement as: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Lyman Trumbull of Illinois said that 'subject to the jurisdiction of the United States' meant subject to its 'complete' jurisdiction, meaning “not owing allegiance to anybody else.”
The very real and relevant point about the ratification of the 14th Amendment is that (there is no mention of slaves or Native Indians) it did not grant citizenship to everyone in the United States by edict. Native Indians were not granted or considered citizens as a consequence of the 14th Amendment. When the 14th Amendment was passed it made no mention of excluding Native Indians, nevertheless, it was plainly understood that Native Indians had not previously been citizens nor were they granted citizenship as a result of the 14th Amendment’s ratification. Native Indians, although born in the territory of the United States were not considered US Citizens.
In Elk v. Wilkins, 112 U.S. 94 (1884) the Supreme Court ruled that Native Indians were not citizens and that individuals could not become citizens merely by declaring themselves so: “But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” The justices go on to point out that: “Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.” This case established the precedent on citizenship issues as they relate to birthright citizenship. As a matter of fact, in 1919 Congress passed the American Indian Citizenship Act. This act provided that American Indians who had participated in World War I and had been honorably discharged could apply for and subsequently be granted citizenship. So even into the early 20th Century Indians, although born in the United States Territory, were not considered Citizens nor automatically granted that privilege under the law. And it wasn’t until 1924 that Congress passed the Indian Citizen Act which granted citizenship to all Native Americans born in the United States. This was done through statute and passed by Congress, it was then that Native Indians gained birthright citizenship in the United States.
Subsequent decisions are cited to support the idea that birthright citizenship is a Constitutional right, particularly US v. Wong Kim Ark. But even though Wong was granted naturalization based on his birth in the United States, his parents were legally present in the country through a treaty with China, at least part of the decision rested on his perceived allegiance to the United States vis a vis China. It can be said that Wong was wrongly decided since immigration and naturalization was expressly prohibited in the treaty with China at the time and it was understood that Chinese workers were still subjects of China. But even this decision acknowledged the right of Congress to legislate naturalization laws.
Additionally, the argument that you are citizen based on the physical location of your birth is not recognized by any other nation. It is contrary to common law as it has been understood for hundreds of years. A person’s citizenship is always based on his parents’ status. This is why the US government has written legislation to accommodate children born in foreign countries and those born to Military servicemen overseas, among many others; because other countries do not automatically recognize the child born as a citizen of their respective countries unless one of the parents is a national of that country. There was even an act granting citizenship to Mexicans who elected to reside in the US after the War with Mexico; otherwise those people would have remained Mexican citizens. The presumption is that a child inherits his citizenship from his parents. This idea is not new and it is disingenuous to believe or to argue otherwise. Just because a child is born in Germany does not make him German, in order to be a citizen he must be born to parents who are subject to German law. And one cannot ignore hundreds of years of jurisprudence because it suits his agenda.All of the arguments notwithstanding look at the “jurisdiction” clause and ask yourself whether or not illegal immigrants in this country are truly under the jurisdiction of the United States. To answer that question, one must wonder why illegal immigrants often call the Mexican Consulate for legal assistance. If they are claiming citizenship for their children (because they are presumably under the jurisdiction of the United States per the 14th Amendment), they would, by definition, have no allegiance to Mexico; why would they call a foreign diplomatic corps for assistance? Probably because we all know instinctively that allegiance to your country, no matter who you are, is much more than the physical location of your birth.
Much, much more…
No comments:
Post a Comment