In my younger days, I heard if you were born on United States soil, you were a citizen. Plain and simple; at least, that’s what I thought.
But President Donald Trump has said the following: “Going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.” On another occasion, he claimed that “birthright citizenship was meant for the children of slaves.” Three Federal Court judges have ruled that Trump’s executive order, intended to end birthright citizenship, violates the 14th amendment citizenship clause.
So, I did some research to determine the origin of birthright citizenship.
Birthright citizenship has its roots in English law and was enunciated in Calvin’s Case in 1608, wherein the court stated that, under English common law, “a person’s status at birth was vested at birth, and based upon place of birth -a person within the Kings dominion owed allegiance to the sovereign, and in turn, was entitled to the King’s protection.”
In the 1844 New York case Lynch v. Clark, the court held that the common law rule applied to the United States, and that a child born in the United States of an alien temporary visitor was a natural born citizen.
The Naturalization Act of 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. The Naturalization Act provided the rule of coverture, which gave the rights of citizenship to men. If married to a woman, the man had control of his wife’s body as well as rights to her property. Her loyalty to her husband was deemed more important than her loyalty to the state. In my opinion, women were considered a commodity.
The Dred Scott v. Sandford decision was decided in 1857. Justice Roger B. Taney, writing the majority opinion, held that under the constitution, African Americans — whether slaves or not — “had never been and could never become citizens of the United States.” In his dissent, Justice Benjamin R. Curtis argued that under the Articles of Confederation, free Black people had already been citizens in five states and carried that citizenship forward when the constitution was ratified.
This ruling lasted until passage of the Civil Rights Act of 1866, which declared that “…all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” ‘Indians not taxed’ were tribal members living on reservations.
The 14th Amendment to the Constitution was approved on July 27, 1868. In it is the Citizen Clause, which states: “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.”
It is important to mention that the 14th Amendment was opposed by President Andrew Johnson from Tennessee, along with most Southern states and proponents of States’ rights. President Johnson was Abraham Lincoln’s Vice President, and filled the Presidential seat after his predecessor’s assassination. The 14th Amendment was decisively voted into law.
In 1882, Congress passed the Chinese Exclusion Act, which stated that Chinese people already in the United States could stay, but they could not be naturalized (become citizens), and if they left the U.S. they would be required to apply for entry. Chinese laborers and miners were barred from entry into the U.S. because some feared they would take jobs from U.S. Citizens.
In the 1898 case United States v. Wong Kim Ark, the Supreme Court established an important precedent in its interpretation of the Citizen Clause in that it solidified birthright citizenship for children of immigrants. Wong was born in the United States and left to visit family in China. He was denied reentry back into the United States and sued.
The arguments were centered upon the interpretation of the meaning of what “to be subject to the jurisdiction of the United States” meant. The Government argued that it meant “to be subject to the political jurisdiction of the United States,” an interpretation based on international law, which excluded parents and children who owed allegiance to another country via the principle of jus sanguinis (citizenship inherited from a parent). Wong’s attorneys argued it meant “subject to the laws of the United States”.
The Court ruled for Wong and held that anyone born (of Chinese descent) in the United States is a citizen, with exceptions for diplomats or those working in an official capacity under a foreign government.
Prior to the Wong decision, the court held in Elk v. Wilkins (1884) that birthplace by itself was not sufficient to grant citizenship to a Native American. However, Congress eventually granted full citizenship to Native Americans via the Indian Citizenship Act of 1924.
Since the 1990s, there has been an attempt to block birthright citizenship for children born in the U.S. to so-called “illegal aliens.” The right-wing conglomerate, including politicians, created the term “anchor babies” to describe these children.
In his first term, Trump stated publicly that he was going to enter an executive order abolishing birthright citizenship. He didn’t. On the first day of his second term, however, he announced an executive order abolishing birthright citizenship for anyone born in the United States without a mother or father that was a U.S. Citizen or lawful permanent resident.
The Supreme Court is going to hear oral arguments on May 15 regarding birthright issues. However, the court will not hear the constitutionality of Trump’s orders. Rather, the issue before the court will be whether a Federal Court can issue broad injunctions that block presidential policies nationwide. Four federal judges from Maryland, Massachusetts, Washington, and New Hampshire have issued different opinions, but each holds that the executive order violates the 14th Amendment to the Constitution, which has long guaranteed citizenship to virtually anyone born in the United States.
The Supreme Court agreed to hold special oral arguments on May 15 to decide whether District Judges have the authority to issue such rulings. If the high court agrees with Trump that the Federal judges overstepped their authority, Trump’s minions could commence implementing his executive order in some parts of the country. However, Trump’s executive order, and his attempt to overturn the 14th Amendment’s Citizenship clause, will still be at issue, unless the Supreme Court goes along with another unconstitutional act forced by the administration.
Manuel Solano is an attorney. He has previously been a professor at Metro State University, President of the Colorado Chicano Bar Association, and a regional director for the Mexican American Legal Defense Education Fund (MALDEF).
