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Constitution Gives Birthright Citizenship to Kids of Immigrants

When the Constitution was drafted in Philadelphia in 1787, its protections were not extended to African Americans and other non-white peoples living here, nor were immigrants and the children of immigrants fully protected by it. That inclusion of the broader populace only came in 1868 with the ratification of the Fourteenth Amendment.

The Fourteenth Amendment was not just another amendment making some limited change in the Constitution. It was a revolutionary extension of liberty to millions of people who had been born in this country, but who were not white, and to millions more who had immigrated here as well as to their children.

The Fourteenth Amendment was passed after the most traumatic decade in American history.

The 1850s had been a time when the attack on the idea of American equality was at its worst. In the Supreme Court’s Dred Scott decision, Chief Justice Roger Taney had written that a Black man had no rights that a “White man was bound to respect.”

At the same time, a movement called the Know Nothings sought to restrict the citizenship rights of immigrants and their children. The fury of the Know Nothings was directed at German and Irish, two groups of immigrants who seemed incapable of assimilation.

One Know Nothing Congressman wrote of the Irish and Germans that “Large masses of foreigners are cast yearly on our shores, ignorant of our laws and language, and still greater strangers to the moderation and self-control…  Experience has demonstrated that the great mass of European immigrants are unfit recipients of American citizenship…”

Abraham Lincoln, a rising politician at the time, was so disgusted with the Know Nothings, that he wrote:

Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and Catholics.” When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

The onset of the Civil War in 1861 changed everything. A large group of native—born Southern White men rose in revolt against the United States to try to create a slave holders’ republic called the Confederacy.

The army called up by Lincoln to suppress the Confederates would be the most diverse in history up to that time. A quarter of the men in the United States army were immigrants, and nearly 10% were Blacks. More than a third of the men who saved the Union were immigrants or people of color.

When the Confederacy was defeated after four years of bloody war, it should have been impossible to deny the citizenship rights of Blacks and immigrants, but eleven Southern states passed laws prohibiting freed slaves from taking their place as citizens of the land they were born in. In response, a year after Lincoln was assassinated by a Confederate intelligence team, Congress took action to craft and pass the Fourteenth Amendment.

The new amendment would do a lot over the century and a half after its passage. It would be used to extend the protections of the Bill of Rights to citizens discriminated against by their state governments. It also ended the Dred Scott doctrine that Blacks had no rights at all.

In 2015, you will hear conservatives say that the Fourteenth Amendment was only meant to apply to freed slaves. The legislative history of the amendment, as well as subsequent judicial decisions tell us that this is just not so. The Fourteenth Amendment has been used in many different types of cases. George Bush became president in 2001 because of a Supreme Court ruling based on the Fourteenth Amendment and the Defense of Marriage Act barring Federal recognition of same-sex marriages was overturned by the Supreme Court in a decision founded on the same amendment. Neither case involved freed slaves. 

Section 1 of the Fourteenth Amendment contains text called the “Citizenship Clause” because it defines who is protected as a citizen. It grants the protection of citizenship to “all persons born or naturalized in the United States.” Someone is naturalized if the person immigrated to America, later filed an application for citizenship, was approved, and then took the oath of citizenship. Former slaves, almost of who were born in the United States, were not “naturalized” citizens. If the framers of the Fourteenth Amendment wanted it to only apply to Blacks, they would not have inserted the phrase “naturalized” in the text. It is clear that naturalized citizens were fully contemplated as being under the protection of the amendment.

The citizenship clause reads, as it applies to immigrants: “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” So the children of immigrants are United States citizens if they are born here.

The development of the Citizenship Clause can be found in the earlier debate over the Civil Rights Act. The Civil Rights Act was passed to enforce the Thirteenth Amendment which abolished slavery. Anti=Black Congressmen tried to undermine the Civil Rights Act by saying that in recognizing the citizenship of “all born in the United States,” the Act would even give citizenship to the children of the Chinese laborers working in California. These Chinese immigrants were barred by law from ever becoming American citizens, so how, they asked, could their children be citizens simply by being born here.

This racist view of the Chinese won an adherent in President Andrew Johnson who vetoed the Civil Rights Act saying that he did it because it would turn “the Chinese of the Pacific states,…the people called Gipsies, as well as the entire race designated as blacks” into citizens as long as they were born in the U.S. President Johnson asked; “Is it sound policy to include our entire colored population, and all other excepted classes [as] citizens of the United States.”

When the Fourteenth Amendment was debated on the floor of the Senate soon after, Senator Edgar Cowan objected saying; “I am unwilling on the part of my state to give up the right of expelling…people who invade her borders, who owe her no allegiance, who recognize no authority in her government, who pay no taxes, who never perform military services, who settle wherever they go. I mean the Gypsies.” The Senator was also appalled that the children of the Chinese would be citizens under the amendment, and he warned that the Chinese and their offspring would one day annex California to China.

John Conness, an Irish immigrant and the Senator from California, assured the Senate that his state was not about to become part of the Chinese Empire. He also joked that while he had few encounters with Gypsies, he had certainly heard a lot about them in Congress since the Citizenship Clause had been introduced.

Senator Conness then got to the heart of the matter. He said that the Citizenship Clause “relates to children begotten of Chinese parents and is proposed to declare that they shall be citizens.” Children of all parentages whatever, the senator said, born in the United States, “should be treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.” The author of the Citizenship Clause, Senator Howard, heard the explanation Conness gave and did not object. In fact he approved of the Irish immigrant’s statement that the courts would protect the rights of the Chinese.

The Supreme Court addressed the meaning of the Citizenship Clause during a tumultuous time for immigrants. By the late 1800s, many Chinese had been stripped of their legal status by the Chinese Exclusion Acts. Chinese who could not find a “white man” to sign an affidavit on their behalf faced deportation without recourse to review by a court. With this large new class of Chinese undocumented immigrants, conservatives argued that the children of the Chinese were not citizens.

In 1898, the Supreme Court decided the issue of whether the children of immigrants are citizens of the United States. In U.S. v. Wong Kim Ark it ruled that with the exceptions of the children of “Wild Indians,” diplomats, and a small class of others, all children born in the United States are citizens of this country.

In its decision, the Court made some nasty remarks about the Chinese, whom it described as an “obnoxious” race, but the Court said that if it did not adopt this rule, it would be ignoring the plain meaning of the Fourteenth Amendment. It pointed out that without this rule, the children of Irish, German, and other European immigrants might also lose their citizenship.

At the time the decision was written, the United States had had undocumented Chinese immigrants living here for nearly two decades. The Court was aware of this fact, but it still chose not to exclude the children of undocumented Chinese from citizenship.

Whatever modern politicians might say, the Birthright Citizenship of the children of undocumented immigrants has deep roots, going back 148 years to the passage of the Fourteenth Amendment and a century to the Supreme Court’s decision in the Ark case.

The Civil War brought a new birth of freedom, and the Fourteenth Amendment ensures that everyone born here can enjoy that freedom. 

Patrick Young is an attorney at CARECEN on Long Island.

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