The Debate Over Birthright Citizenship is Not as Clear as Many Think
The Case Often Referenced as Precedent May Strain Credulity for some Justices on the Supreme Court
No matter what one’s position on the debate over birthright citizenship in the United States, many may be surprised to learn that the constitutional history and canon of jurisprudence involved is not as cut and dry as some may lead you to believe.
In fact, as a constitutional historian and an author of a book about the history of the U.S. Supreme Court (available here), this writer has been waiting many years for this debate to find its way into the public conscious, and—for that matter—find its way to the Court.
Partisans on both sides of the issue, whether they hold that birthright citizenship has no legal basis, or those on the opposing side who believe it to be a settled issue—chartered in the U.S. Constitution’s Fourteenth Amendment and, purportedly, upheld previously by the Court—do not appear to appreciate how precarious the debate actually is.
For example, when supporters of birthright citizenship defend it, they (if they appeal to substantive matters and not merely emotional assertions) will often cite the 1898 case, United States v. Wong Kim Ark. This is the case, according to a number of news pundits, bloggers, podcasters, journalists, and even lawyers and legal scholars, routinely cited as having created precedent (and thus settled the matter) regarding U.S.-based birthright citizenship. Upon closer examination, however, the relevant details of United States v. Wong Kim Ark concerning the current debate, over illegal immigrants residing within the United States and the status of their children born within the nation’s borders, are quite different. That difference may be significant enough for the majority of the Supreme Court to see the present controversy as not applicable to the precedent secured in United States v. Wong Kim Ark.
As a constitutional historian and author of a book about the history of the U.S. Supreme Court, this writer has been waiting many years for this debate to find its way into the public conscious, and—for that matter—find its way to the Court.
Let’s scrutinize the 1898 case, so that its disparities with this ongoing debate can be truly appreciated and understood.
As reported by the National Constitution Center, “Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens. At age 21, he took a trip to China to visit his parents. When he returned to the United States, he was denied entry on the ground that he was not a U.S. citizen. In a 6-to-2 decision, the Court ruled in favor of Wong Kim Ark. Because he was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the Fourteenth Amendment automatically made him a U.S. citizen.” You can read the National Constitution Center’s full article about the Wong Kim Ark case here.
The question then is, does this case—which involved a person born on U.S. soil to immigrants residing in the United States, and of which the Court ruled the person to have been born a citizen—fit with the current controversy regarding birthright citizenship to persons born to immigrants residing in the country illegally?
Not necessarily.
The reason: though Wong Kim Ark’s parents were not citizens of the United States when he was born on U.S. soil, they were nevertheless residing in the country legally. Thus, the Wong Kim Ark case in no way speaks to the birthright citizenship question regarding people who are in the U.S. illegally and who produced a child on United States soil.
When a citizen of the United States produces a child, on U.S. soil or anywhere else, that child is a citizen of the United States. A child of an American citizen, whether it is the mother or father (or both), is an American citizen (if a child is born on U.S. soil and both parents are American citizens, this is known as a natural born citizen of the United States).
United States v. Wong Kim Ark thus never addressed the relevant issue of children born to those illegally residing inside the country. Period.
It is most relevant to ask what the text of the Fourteenth Amendment actually states regarding (what has come to be known as) birthright citizenship. Since this is the amendment at issue in which interested parties on both sides of the debate are wrestling with, the relevant clause should be scrutinized. It states, simply:
“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.”
Note the clause “subject to the jurisdiction thereof.” The crux of the debate relies entirely on what this clause means. Those in favor of birthright citizenship status quo argue that the clause possesses no substantive relevance. Opponents to that position assert that prior jurisprudence, nineteenth-century congressional tesitmony, and an honest assessment of the amendment’s framers’ intentions make plain that there is no legitimacy to birthright citizenship in its modern form.
This is the controversy and this is the question, in a nutshell, which the Supreme Court may soon contemplate. All other matters are distractions from this critical constitutional question: clarifying and ruling on the meaning of subject to the jurisdiction thereof. Forget the rest of it. This is what the debate is all about.
So, when this writer notices a thumbnail of a YouTube video for a news program, using language simplifying and actually distorting what the Fourteenth Amendment states about the scope of American birthright citizenship, it is a clear signal that some in the media are clueless to the debatable facts, are airing their own political biases, or possibly some combination of the two.
A thumbnail of a YouTube video for a news program, using language simplifying and actually distorting what the Fourteenth Amendment states about the scope of American birthright citizenship. This is a clear signal that some in the media are clueless to the debatable facts, are airing their own political biases, or possibly some combination of the two.
The purpose of this article is neither to debunk current advocacy of birthright citizenship as it has come to be known, nor to defend it, but to simply elucidate what the constitutional question of the matter is actually about. Whatever one’s position on the issue, journalists should be expected to deliver the dimensions of the issue and the complexity of the controversy with a modicum of neutrality, historical understanding, and an appreciation for the facts. They have once again failed.
One bit of good news regarding the matter is that perhaps, whichever direction the Court decides (and it truly is anyone’s guess), at least it will be judicially settled and people will not be relying on a one hundred-and-thirty-year old case that bears little resemblance to the controversy at hand.
It has been said that journalism is the first draft of history. This seems appropriate considering that all first drafts are shit. Not only, however, do journalists do a terrible job in crafting history’s first draft, but their reports regarding matters well over a century old are no better.
A tip for one and all: do not get your history from those who report the news. Their assessments of the past are apparently no better (and arguably worse) than those of the present.
[James M. Masnov is a Columbian Distinguished Fellow at George Washington University’s History Department in Washington, DC. He has been a contributor at Pure Insights, the Brownstone Institute, Armstrong Journal of History, and the Oregon Encyclopedia, among other publications. He is also the author of Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, available here, and History Killers and Other Essays by an Intellectual Historian, available here.]
A fan of history-based content and need so much more? Consider becoming a subcriber to History is Human: A Journal of American Intellectual History. Support our mission to provide nonpartisan historical scholarship that is neither cynical, nor utopian. Help us make history by subcribing here.
