Right-wing attacks on birthright citizenship have a long and sordid history

Donald Trump is leading the charge against the Constitution

Donald Trump is leading the charge against the Constitution

The Constitution of the United States is once again under attack from the right, fueled by racist xenophobic bleating from front-running Republican primary candidate Donald Trump, which Daily Kos writer Hunter recently dubbed the "new Southern strategy." A majority of the rest of the Republican candidate sheeple are falling in line behind Trump, making "re-examine or repeal the 14th Amendment" noises. Right now the head count includes Scott Walker, Chris Christie, Rick Santorum, Bobby Jindal, Lindsey Graham and Ted Cruz, with Jeb! whining about fraud and abuse.  

The bluster machine is supported by bigots who want to reverse the age-old promise of the U.S.—"Give me your tired, your poor, your huddled masses yearning to breathe free"—because the waves of new immigrants to the U.S. are from Africa, Asia, Mexico, the Caribbean, Central and South America and are not white.

According to estimates from the 2013 ACS, the U.S. immigrant population stood at more than 41.3 million, or 13 percent, of the total U.S. population of 316.1 million. Between 2012 and 2013, the foreign-born population increased by about 523,000, or 1.3 percent. U.S. immigrants and their U.S.-born children now number approximately 80 million persons, or one-quarter of the overall U.S. population.

The animus from anti-immigration voices is increased by the fact that approximately 11.3 million immigrants are here without papers. The figure that is for me the most important in the following discussion is about the children of immigrants who were born here, and are citizens.

Second-generation children under age 18—those who were born in the United States to at least one foreign-born parent—accounted for 88 percent (15.3 million) of all children with immigrant parents.

Follow me below the fold to examine the history of "jus soli"—otherwise known as birthright citizenship—here in the U.S., the tides of reaction, and the need for progressive pushback.

Dred Scott

The U.S. Constitution—specifically the 14th Amendment—is clear about the citizenship status of the children of immigrants. Read this ACLU statement:

The 14th Amendment to the U.S. Constitution provides that, with few discrete exceptions, people born in the United States are citizens of this country, irrespective of race, ethnicity, or national origin of their parents. The Amendment was ratified to rectify one of the most infamous U.S. Supreme Court rulings in our nation’s history – the Dred Scott v. Sandford decision of 1857, in which the Court held that no individuals of African descent, including slaves and free persons, could ever become U.S. citizens.

In response to Dred Scott, Congress passed and the states ratified the 14th Amendment. Its very first sentence states unambiguously: “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 intent of these powerful words was to put citizenship above the politics and prejudices of any given era, a goal that is as important today as it was at the time of the 14th Amendment’s ratification.

Let me repeat part of that last line.

"Above the politics and prejudices."

The crass political manipulation of prejudice to whip up a frenzy in the breasts of malcontent bigots who want walls built, and undocumented immigrants and their citizen children expelled, is a dangerous and slippery slope—failing to push back will make us worse than our Caribbean neighbor, the Dominican Republic, which in violation of both law and sanity, and fueled by racism, is now repealing birthright citizenship for many black Dominicans.

Racism as a feature in the objections to birthright citizenship isn't new and plentiful examples can be found in U.S. history—look at the debate that took place in first session of the 39th Congress, around the Citizenship Clause.

Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. The debate on the Civil Rights Act contained the following exchange:

Mr. Cowan: “I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?”

Mr. Trumbull: “Undoubtedly.”
...
Mr. Trumbull: “I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens?”

Mr. Cowan: “I think not.”

Mr. Trumbull: “I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”

Mr. Cowan: “The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.”

Mr. Trumbull: “If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.”

Critics of birthright citizenship, or "jus soli" are quick to point out that much of the world practices "Jus sanguinis" or "right of blood," and they are correct, if one is looking only at numbers, and not at geography and history.  

World map illustrating countries with birthright citizenship in dark blue

You can see clearly from the dark blue areas on the map, that the New World left much of the Old World practice and jurisprudence behind, and in essence left a wide open door to encourage migration and settlement. The establishment of birthright rather than bloodright became an invitation to establish new nations, and develop new national identities. But those new national identities were often Euro-new world, leaving far too many others as outsiders.

Indian Citizenship Act

The 14th Amendment did not resolve citizenship for one major group of people in the U.S.—the original inhabitants—First Nations people, the American Indians.

"Act of June 2, 1924, which authorized
 the Secretary of the Interior
 to issue certificates of citizenship to Indians."

The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder (R) of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act. (The Fourteenth Amendment already defined as citizens any person born in the U.S., but only if "subject to the jurisdiction thereof"; this latter clause excluded anyone who already had citizenship in a foreign power such as a tribal nation.) The act was signed into law by President Calvin Coolidge on June 2, 1924. It was enacted partially in recognition of the thousands of Indians who served in the armed forces during World War I.

Native Americans were willing to fight and die for a nation that stole their land and heritage and attempted to wipe them out in the process.  

The Act granted citizenship to about 125,000 of 300,000 indigenous people in the United States. To put these numbers in perspective, the U.S. population at that time was less than 125 million. The indigenous people who were not included in citizenship numbers had already become citizens by other means; entering the armed forces, giving up tribal affiliations, and assimilating into mainstream American life were ways this was done. Citizenship was granted in a piecemeal fashion before the Act, which was the first more inclusive method of granting Native American citizenship. The Act did not include citizens born before the effective date of the 1924 act, or outside of the United States as an indigenous person, however, and it was not until the Nationality Act of 1940 that all born on U.S. soil were citizens.

Even Native Americans who were granted citizenship rights under the 1924 Act may not have had full citizenship and suffrage rights until 1948. According to a survey by the Department of Interior, seven states still refused to grant Indians voting rights in 1938. Discrepancies between federal and state control provided loopholes in the Act’s enforcement. States justified discrimination based on state statutes and constitutions. Three main arguments for Indian voting exclusion were Indian exemption from real estate taxes, maintenance of tribal affiliation and the notion that Indians were under guardianship, or lived on lands controlled by federal trusteeship. By 1947 all states with large Indian populations, except Arizona and New Mexico, had extended voting rights to Native Americans who qualified under the 1924 Act. Finally, in 1948 these states withdrew their prohibition on Indian voting because of a judicial decision.

The 14th Amendment

The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states 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 clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected.

Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act.

Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Editorial cartoon showing a Chinese man, surrounded by luggage labeled "Industry", "Order", "Sobriety", and "Peace", being excluded from entry to the "Golden Gate of Liberty". The sign next to the iron door reads, "Notice—Communist, Nihilist, Socialist, Fenian & Hoodlum welcome. But no admittance to Chinamen." At the bottom, the caption reads, "THE ONLY ONE BARRED OUT. Enlightened American Statesman—'We must draw the line somewhere, you know.'"

The Chinese Exclusion Act

One of the critics of the Chinese Exclusion Act was the anti-slavery/anti-imperialist Republican Senator George Frisbie Hoar of Massachusetts who described the Act as "nothing less than the legalization of racial discrimination."

The laws were driven largely by racial concerns; immigration of persons of other races was unlimited during this period.

On the other hand, many people strongly supported the Chinese Exclusion Act, including the Knights of Labor, a labor union, who supported it because it believed that industrialists were using Chinese workers as a wedge to keep wages low. Among labor and leftist organizations, the Industrial Workers of the World were the sole exception to this pattern. The IWW openly opposed the Chinese Exclusion Act from its inception in 1905.

The plight of Mexican-Americans was no better. Though they are the largest Spanish-speaking group in the U.S., they had to trek a rocky road to citizenship.

When the U.S. was ceded 525,000 square miles of northern Mexico in the Treaty of Guadalupe Hidalgo in 1848, making up large parts of what are now the states of Texas, New Mexico, Utah, Arizona, Nevada, California and parts of Wyoming and Colorado, Mexican citizens living in those regions were promised U.S. citizenship. However, full citizenship rights were granted only to about 80,000 former Mexicans in the ceded territories—those who were considered “white.” Though indigenous people and those of mixed blood living in the territories had enjoyed full Mexican citizenship, they were treated as Native Americans under U.S. rule and did not receive full citizenship until 1930. Although the treaty also promised to honor property rights of Mexican citizens who found themselves, after 1848, living within U.S. borders, the reality was far different. When white settlers to the West seeking land challenged Mexican-American property rights in court, the rulings almost invariably favored the newcomers. By the late 19th century, the vast majority of people of Mexican origin living in the western U.S. were landless and reduced to the status of farm laborers.

Grade school students in Questa, New Mexico

Though Mexican Americans living in the southwestern U.S. were not subject to the same systematic Jim Crow laws enforcing segregation as were African Americans in the southeast, they were frequently subjected to locally enforced segregation of neighborhoods, schools, and churches, to a form of family-based farm labor that amounted to peonage, and to periodic wholesale deportation efforts by federal and state authorities. During the Great Depression attempts to encourage people to return to Mexico were augmented by roundups and forcible deportations of upwards of 1 million Mexican Americans, more than half of whom were U.S. citizens. It was not until 1947 that the U.S. Supreme Court outlawed segregating children of Mexican and Latin American descent in southwestern public school systems, and not until 1954, in Hernandez v. Texas, that the Supreme Court declared that Mexicans—and all other racial and ethnic minorities in the U.S.—were fully covered by the 14th Amendment guarantee of equal treatment under the law.

I wasn't surprised to see that the purported Republican defender of Hispanics is doing more damage than defense, as outlined in this article, Jeb Bush: ‘Anchor babies’ isn’t offensive:

KEENE, N.H. — A feistier, combative Jeb Bush said Thursday that he doesn't believe the term "anchor babies" is offensive and blamed Democrats for perpetuating the idea that it's a loaded term.

In one of his most aggressive exchanges with reporters to date, Bush dismissed suggestions that the two-word term deemed offensive by many Hispanics and denounced by Democrats is improper. "Do you have a better term? You give me a better term and I'll use it," he snapped at a reporter who asked him.

The former Florida governor first used the words Wednesday in a radio interview as he responded to questions about Donald Trump's use of the term. To some, it describes people who immigrate illegally into the United States and give birth here to ensure U.S. citizenship for their child.

The use of the pejorative isn't new, as outlined in this article, New Attacks on Birthright Citizenship: “Anchor Babies” and the 14th Amendment by Julia Nissenm:

Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC), in a surprisingly radical move on his part, appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves.

Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a staunch Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution.

Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship). “Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8% of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.”

As the "R-Team" makes more and more racist noise about immigrants and birthright citizenship, and bloviating about it seems to draw the flock to Trump rallies—boosting him in the polls—I often wonder if there are any sane Republicans left in the media, and among observers.  

I have to admit I was very surprised to see a clip of Morning Joe Scarborough vociferously defending the Constitution.

As the ugly rhetoric from the right grows louder, it makes me wonder how far some of these candidates ranting, and those who listen to them, will go. We know Republicans want to turn back the clock on women's rights. We know they don't believe that Black Lives Matter. What's next? A revival of Dred Scott?

Reading the conclusion of Matt Ford's piece at The Atlantic, Could Birthright Citizenship Be Undone?, didn't set my mind at ease.

Could birthright citizenship still be undone? There’s a strain of legal thought that argues that a constitutional amendment wouldn’t be necessary. In 1985, Yale law professors Peter Schuck and Rogers Smith proposed that congressional legislation could clarify that the right does not extend to the children of undocumented immigrants. It’s not a completely heretical idea—Richard Posner, a prominent federal judge in the Seventh Circuit, endorsed it in 2010—but it’s not a mainstream one, either. When Congress considered similar legislation in 1995, Assistant Attorney General Walter Dellinger told members that a bill “that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face.” Although a constitutional amendment to achieve the same goal could not itself be unconstitutional, Dellinger also argued it “would flatly contradict the Nation’s constitutional history and constitutional traditions.”

Would the Supreme Court uphold a narrower view of birthright citizenship today? Curtailing the Citizenship Clause’s scope would be a seismic shift in constitutional law, beyond even Citizens United or Obergefell. The justices may also be reluctant to weaken a constitutional amendment explicitly designed to override a previous Supreme Court ruling—especially if that ruling was Dred Scott. But recent history shows that the easiest way to change the Constitution is not to amend it, but rather, to change the composition of the Court that interprets it. With three justices of the current Court turning 80 years old before the 2016 election, the next president might be able to do just that.

We have an obligation to ensure that we not only hold the White House in 2016, but that we wrest control of the Senate from Republican hands. We cannot allow a court like the one led by led by Chief Justice Roger B. Taney—the court that ruled on Dred Scott in the past—to be reconstituted in the present, handing down more decisions like Citizen's United.