-A question of citizenship
by brian k. shoemake
One of the most disputed and debated articles of the U.S. Constitution regarding immigration has been the Fourteenth Amendment. Also widely referred to as the "Citizenship Clause."
Amendment XIV Section 1.
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The amendment states that citizenship is guaranteed to anyone who was born in the United States and "subject to the jurisdiction thereof." But that statement could be a bit misleading without a full understanding of court interpretations, and Congressional action since then...
by brian k. shoemake
One of the most disputed and debated articles of the U.S. Constitution regarding immigration has been the Fourteenth Amendment. Also widely referred to as the "Citizenship Clause."
Amendment XIV Section 1.
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The amendment states that citizenship is guaranteed to anyone who was born in the United States and "subject to the jurisdiction thereof." But that statement could be a bit misleading without a full understanding of court interpretations, and Congressional action since then...
In 1873 the Supreme Court clarified the meaning of this phrase, and then expanded on it in 1884, to hold that "this clause applies to those who have complete and undivided allegiance to the United States because they do not owe allegiance to a foreign nation". Congress has a right to grant citizenship more broadly than that, but it is not a requirement set forth in the Constitution.
The “main purpose of the opening sentence of the Fourteenth Amendment,” the court explained, was “To settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all persons, white or black … should be citizens of the United States and of the state in which they reside.”
This amendment intentionally made huge strides in granting citizenship and constitutional protections to black Americans, but the amendment had been interpreted to restrict the citizenship rights of most Native people, so "Indians" were not made citizens under the 14th Amendment. "The Indian Citizenship Act" which changed that, didn't come along for another 56 years.
In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th Amendment did not grant Indians citizenship. And the court clearly stated that no-one can become a citizen of a nation without it's consent.
According to the court, under the 14th Amendment, not everyone born in the United States has citizen's birthrights. Furthermore, stated under Article 1, Section 8, Clause 4 of the Constitution: "Congress shall have the power to establish a uniform rule of naturalization."
Does that mean the Congress actually has the power to determine who is a lawful citizen, and who is not without amending the Constitution? The answer is yes, and there is legal precedent.
When the 14th Amendment was passed in 1868, Native Americans were excluded because it was expected that they would hold allegiance to their own native nations.
In 1924 Congress redefined citizenship by passing the "Indian Citizenship Act of 1924", also known as the "Snyder Act", named for it's author, Homer P. Snyder (R) New York, which granted full citizenship to Native Americans, called "Indians" at the time.
Indian Citizenship Act of 1924
"BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.."
Approved, June 2, 1924.
When the Snyder Act was signed into law by President Calvin Coolidge on June 2, 1924, it gave full citizenship rights and protections under the Constitution to America's indigenous people. Primarily because of their service and contributions to the United States during WW1. This action, which made Native Americans lawful citizens of the United States, required no amendment to the Constitution whatsoever. This monumental action was accomplished solely through an act of Congress, and signed into law by the President.
Justice John Marshall Harlan II, wrote in the 1967 case, Afroyim v. Rusk, that the sponsors of the 14th Amendment feared that:
“Unless citizenship were defined, freedmen might, under the reasoning of the Dred Scott decision, be excluded by the courts from the scope of the amendment. It was agreed that, since the ‘courts have stumbled (Dred Scott) on the subject,’ it would be prudent to remove the ‘doubt thrown over’ it. The clause would essentially overrule Dred Scott and place beyond question the freedmen’s right of citizenship because of birth.”
in a divided 1898 case, U.S. v. Wong Kim Ark, the Supreme Court granted citizenship to the children born to legal immigrants, with certain exceptions, such as for diplomats.
In 1895 Wong Kim Ark was denied re-entry to the United States after an extended visit to China on the grounds that he was not a U.S. citizen, even though he was born in the United States to Chinese parents who were subjects of the Chinese emperor, but had legal U.S. residency. Also Ark had worked and lived in San Francisco his entire life. The question to the court was whether Ark being of Chinese descent, born on U.S. soil to Chinese parents, was indeed entitled to American citizenship under the 14th Amendment.
In it's opinion, the court cited many previous cases involving similar circumstances. Most of their opinions were based on British Common Law, and completely out of the realm of the United States Constitution. In their strained interpretation of the 14th Amendment and in one of the strangest and perhaps most activist rulings by the Supreme Court up to that point, they cited obscure and irrelevant historical overviews such as colonial and foreign law. With two previous court decisions and a United States Attorney General opinion clearly defining the meaning of the 14th Amendment, it appeared that the court was attempting to misinterpret previous rulings and reality.
Under the majority's logic behind Wong Kim Ark, children born to American parents traveling in England would not be considered American citizens, but British subjects.
The archaic and illogical Ark decision was widely ridiculed by legal experts and constitutional scholars alike, as it relied heavily on feudal law regarding citizenship in a monarchy. If you recall, any such antiquated notions were most assuredly rendered inconsequential due to a rather memorable event in American history commonly referred to as: "The Revolutionary War".
the Ark court decision leaves more questions than answers regarding the court's bizarre final ruling..
In 2003, in Ofoji v. Ashcroft, Judge Richard Posner of the 7th Circuit Court of Appeals added some common sense and enlightenment to the argument, calling immigrating to the U.S. solely for the purpose of giving birth to a child "an abuse of hospitality".
"We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship.
A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.
The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.."
According to Judge Posner, The purpose of the 14th Amendment, was “to grant citizenship to the recently freed slaves,”
Using his logic, there is no question that the United States Congress has the right to pass laws regarding immigration and citizenship. The proof of which is in the fact that Congress in 1924 passed the "Indian Citizenship Act" which effectively modified the 14th Amendment, giving full citizenship rights to Native Americans without having to amend the Constitution.
While denying citizenship to the children of non-citizen immigrants may be constitutional, there is a question of deporting non-citizen immigrants who are currently illegally on American soil.
In reality, deporting several million non-citizens is a separate issue altogether. The Bill of Rights applies to all people, not just lawful citizens. Therefore any attempt to deport millions of people, legal citizens or otherwise, will surely be met with a monumental court challenge under the "Due Process Clause" of the 5th Amendment. I doubt that this Congress or any future Congress is prepared or equipped to win that battle..
The “main purpose of the opening sentence of the Fourteenth Amendment,” the court explained, was “To settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all persons, white or black … should be citizens of the United States and of the state in which they reside.”
This amendment intentionally made huge strides in granting citizenship and constitutional protections to black Americans, but the amendment had been interpreted to restrict the citizenship rights of most Native people, so "Indians" were not made citizens under the 14th Amendment. "The Indian Citizenship Act" which changed that, didn't come along for another 56 years.
In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th Amendment did not grant Indians citizenship. And the court clearly stated that no-one can become a citizen of a nation without it's consent.
According to the court, under the 14th Amendment, not everyone born in the United States has citizen's birthrights. Furthermore, stated under Article 1, Section 8, Clause 4 of the Constitution: "Congress shall have the power to establish a uniform rule of naturalization."
Does that mean the Congress actually has the power to determine who is a lawful citizen, and who is not without amending the Constitution? The answer is yes, and there is legal precedent.
When the 14th Amendment was passed in 1868, Native Americans were excluded because it was expected that they would hold allegiance to their own native nations.
In 1924 Congress redefined citizenship by passing the "Indian Citizenship Act of 1924", also known as the "Snyder Act", named for it's author, Homer P. Snyder (R) New York, which granted full citizenship to Native Americans, called "Indians" at the time.
Indian Citizenship Act of 1924
"BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.."
Approved, June 2, 1924.
When the Snyder Act was signed into law by President Calvin Coolidge on June 2, 1924, it gave full citizenship rights and protections under the Constitution to America's indigenous people. Primarily because of their service and contributions to the United States during WW1. This action, which made Native Americans lawful citizens of the United States, required no amendment to the Constitution whatsoever. This monumental action was accomplished solely through an act of Congress, and signed into law by the President.
Justice John Marshall Harlan II, wrote in the 1967 case, Afroyim v. Rusk, that the sponsors of the 14th Amendment feared that:
“Unless citizenship were defined, freedmen might, under the reasoning of the Dred Scott decision, be excluded by the courts from the scope of the amendment. It was agreed that, since the ‘courts have stumbled (Dred Scott) on the subject,’ it would be prudent to remove the ‘doubt thrown over’ it. The clause would essentially overrule Dred Scott and place beyond question the freedmen’s right of citizenship because of birth.”
in a divided 1898 case, U.S. v. Wong Kim Ark, the Supreme Court granted citizenship to the children born to legal immigrants, with certain exceptions, such as for diplomats.
In 1895 Wong Kim Ark was denied re-entry to the United States after an extended visit to China on the grounds that he was not a U.S. citizen, even though he was born in the United States to Chinese parents who were subjects of the Chinese emperor, but had legal U.S. residency. Also Ark had worked and lived in San Francisco his entire life. The question to the court was whether Ark being of Chinese descent, born on U.S. soil to Chinese parents, was indeed entitled to American citizenship under the 14th Amendment.
In it's opinion, the court cited many previous cases involving similar circumstances. Most of their opinions were based on British Common Law, and completely out of the realm of the United States Constitution. In their strained interpretation of the 14th Amendment and in one of the strangest and perhaps most activist rulings by the Supreme Court up to that point, they cited obscure and irrelevant historical overviews such as colonial and foreign law. With two previous court decisions and a United States Attorney General opinion clearly defining the meaning of the 14th Amendment, it appeared that the court was attempting to misinterpret previous rulings and reality.
Under the majority's logic behind Wong Kim Ark, children born to American parents traveling in England would not be considered American citizens, but British subjects.
The archaic and illogical Ark decision was widely ridiculed by legal experts and constitutional scholars alike, as it relied heavily on feudal law regarding citizenship in a monarchy. If you recall, any such antiquated notions were most assuredly rendered inconsequential due to a rather memorable event in American history commonly referred to as: "The Revolutionary War".
the Ark court decision leaves more questions than answers regarding the court's bizarre final ruling..
In 2003, in Ofoji v. Ashcroft, Judge Richard Posner of the 7th Circuit Court of Appeals added some common sense and enlightenment to the argument, calling immigrating to the U.S. solely for the purpose of giving birth to a child "an abuse of hospitality".
"We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship.
A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.
The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.."
According to Judge Posner, The purpose of the 14th Amendment, was “to grant citizenship to the recently freed slaves,”
Using his logic, there is no question that the United States Congress has the right to pass laws regarding immigration and citizenship. The proof of which is in the fact that Congress in 1924 passed the "Indian Citizenship Act" which effectively modified the 14th Amendment, giving full citizenship rights to Native Americans without having to amend the Constitution.
While denying citizenship to the children of non-citizen immigrants may be constitutional, there is a question of deporting non-citizen immigrants who are currently illegally on American soil.
In reality, deporting several million non-citizens is a separate issue altogether. The Bill of Rights applies to all people, not just lawful citizens. Therefore any attempt to deport millions of people, legal citizens or otherwise, will surely be met with a monumental court challenge under the "Due Process Clause" of the 5th Amendment. I doubt that this Congress or any future Congress is prepared or equipped to win that battle..