I read Hunter’s great diary about the Republican’s new Southern Strategy of the ending of so-called “birthright” citizenship. I even read some comments that thought that it wasn’t such a bad idea. Well, you better get your constitutional convention hats on because you will have to amend the Constitution.
In 1868, the 14th Amendment to the United States Constitution was ratified and became the supreme law of the land. Article 1 of the Amendment states in part:
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 (emphasis mine).
In 1873, a man named Wong Kim Ark was born in San Francisco, California. In 1882, the United States Congress passed the Chinese Exclusion Act. This law severely limited immigrants from China and barred Chinese immigrants in the United States from naturalization. It was undisputed that Wong Kim’s parents were not U.S. citizens and they were “subject to the jurisdiction of China.” In 1890, Wong Kim departed to China for a temporary visit. He returned a few months later to San Francisco. In 1894, Wong Kim Ark made another temporary visit to China and returned in the summer of 1895. This time, he was refused entry into the United States on the ground that he was not a U.S. citizen and detained aboard the vessel on which he arrived.
Wong Kim Ark filed a petition for habeas corpus in the District Court for the Northern District of California. The then “district attorney for the United States” intervened and asked that Wong Kim Ark not be released because he was inter alia a “subject of the emperor of China.” The trial judge, after an extensive review of the law, held that Won Kim Ark was indeed a U.S. citizen within the meaning of the 14th Amendment because he was born in the United States. The judge then ordered his release. The case was appealed to the United States Supreme Court.
After a rigorous review of the law and history of citizenship laws in the United States and England and the history of the 14th Amendment, Justice Horace Gray gave the opinion of the court that the 14th Amendment, “has conferred no authority on congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.” The Supreme Court upheld the lower court’s decision that Kim was a citizen and this has been the law of the land since 1898.
Now there are some commentators that have suggested that since Wong Kim Ark’s parents were in the country legally at the time of his birth, the case does not apply and birthright citizenship does not automatically pass to children of illegal immigrants. The Supreme Court case of Plyer v. Doe disposed of this argument by stating that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
So if you are born in the United States you are a citizen. It will take a constitutional amendment to change that.