President Trump’s latest threat to the Constitution should come as no surprise. Despite the clear wording of the 14th Amendment that “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,” the president and his allies on the anti-immigrant right would deny citizenship to millions of Americans born here. The president falsely claims that the United States is unique in granting birthright citizenship. In fact, 30 other countries, including most in the Western Hemisphere, grant citizenship by birth. The practice in America dates back to colonial times, when English common law recognized that all persons born on British soil were British subjects. Nonetheless, the president and some others on the right, would like to rewrite American history in their effort to deny citizenship to the children of immigrants (those who came here legally as well as illegally) who, in this era, happen to be of Latino, Asian, and African ancestry. It is hard not to conclude that this is but one more battle to redefine America in racial terms as a white, Anglo-Saxon nation.
The president’s target is, of course, the 4.5 million children whose parents came to the United States illegally—but millions of other Americans might be ensnared by this pernicious scheme as well. How the denial of birthright citizenship might actually work is unpredictable, and the proponents have been coy about revealing their criteria for U.S. citizenship. If being born on U.S. soil does not confer citizenship, what does? Will children born to legal residents who have not naturalized be entitled to U.S. citizenship, or will they have to apply to become citizens? If so, what will be the basis for granting or denying citizenship? And exactly how many generations born on U.S. soil will it take to confer citizenship by birth? If your grandparents immigrated to the United States legally (which before 1924 meant pretty much just getting off a boat or crossing the land border with Canada or Mexico) but never naturalized, are you a citizen now? Sure your parents were born here and so were you, but if birthright citizenship applies only to the progeny of immigrants who became naturalized citizens, maybe not.
Even non-immigrants will be affected if birth does not confer citizenship. At present, anyone can obtain a U.S. passport or register to vote by providing a birth certificate showing they were born in the United States. But if a birth certificate is not proof of citizenship, every American is going to be affected. And what is it we are “protecting” by upending a system that has served us well for more than 150 years (for whites, to our very founding)? Will we be a better nation if millions of people who are born here, pay taxes, contribute to their communities and our society are deprived of the right to become citizens? And how will they attain that right? Must they move back to their parents’ nation of origin and apply to immigrate? Will Trump seek to deport those born here as well as their parents? (I think we know the answer to that question already.)
I don’t believe it will come to this—but not because Trump won’t try. He will be aided and abetted by outfits like the Claremont Institute, whose scholars have spearheaded legal arguments against birthright citizenship for children born to illegal immigrants and more recently to those born to legal immigrants as well. My faith is based on a belief there is little appetite to reinterpret the 14th Amendment in ways that defy the plain language of the amendment, its legislative history, and subsequent court rulings.
The entire case for denying birthright citizenship to the children of illegal immigrants rests on an interpretation of the phrase “and subject to the jurisdiction thereof,” which was inserted during Senate consideration of the 14th Amendment. The author of the language, Senator Jacob Howard of Michigan, explained on the Senate floor that his amendment was meant to exclude diplomats’ children: “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 born in the United States.” Eastman and others are fond of quoting Howard’s language in defending their interpretation but do so disingenuously by inserting the word “or” in brackets before the phrase “who belong to the families of ambassadors … ” This clever bit of legerdemain turns a restrictive modifier of the word foreigners (and its apposite aliens) into a list of three presumably separate categories to be excluded.
But nothing of the sort was intended. Most of the debate centered on whether the language would confer citizenship to Indians who, as members of sovereign nations with which the United States had treaties, had always been excluded. Nonetheless a few opponents of the amendment objected to the language because it recognized citizenship for the children of immigrants, especially those whom these opponents considered unworthy. “Is the child of the Chinese immigrant a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States?” argued Senator Edgar Cowan of Pennsylvania. Senator John Conness of California replied, “why all this talk about Gypsies and Chinese. I have lived in the United States for many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life.…Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all understanding and comprehension.”
The Supreme Court grappled with exactly Cowan’s example in the definitive case on birthright citizenship, United States v. Kim Wong Ark (1898). The case involved the American-born son of Chinese laborers who lived in San Francisco at the time of his birth in 1873, having arrived just three years earlier. Kim’s parents returned to China some 20 years later, and it was after a visit to his parents’ homeland that Kim was denied re-entry to the United States based on a law passed in 1882 to exclude Chinese from entering the U.S. Kim sued, arguing that he was a United States citizen by birth, and the court eventually found in his favor. “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” wrote Justice Gray for the majority. “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States,” the court noted.
The president’s latest assault on immigrants bespeaks a ruthless, if bloodless, ethnic cleansing. Unsatisfied at barring the door to those seeking refuge in the United States, threatening to incarcerate whole families of Central American asylum-seekers indefinitely, he now wants to strip millions of Americans of their natural right to citizenship in the land where they were born. Where will Donald Trump’s efforts to remake America in his preferred image stop? And how long will conservatives who claim to revere the rule of law remain silent?