Birthright Citizenship Redux

Wong Kim Ark, from a 1904 US immigration document, via Wikimedia Commons. 

Revised and expanded from the post of January 26, with what I think is a somewhat new argument up in front, inspired immediately by an irritating Bluesky post. 

Maybe the birthright citizenship order will ultimately be held unconstitutional, but I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees. 1/2 pic.twitter.com/2R4OE9lT8a

— Ilan Wurman (@ilan_wurman) January 23, 2025

The "entire literature" (which seems to consist of a single book by Peter Shuck and Rogers Smith, Citizenship without Consent: Illegal Aliens in the American Polity, Yale University Press, 1985, and its brief recap in the American Enterprise Institute's magazine National Affairs, summer 2018, presumably published in the hope of attracting attention from President Trump and his factotum Stephen Miller), is fatally flawed by its failure to recognize the significance of an obvious fact: there were no "illegal aliens" in the United States at the time the 14th Amendment passed Congress in 1866 and was ratified two years later, only millions of immigrants who might or might not choose to be naturalized (white immigrants, that is, under the terms of the Naturalization Acts of 1798 and 1802).

And when those immigrants had children, as they often did, no reason to question their citizenship or "naturalize" them; as affirmed in an 1844 New York state case, Lynch v. Clarke, in which a state judge held that a woman born in New York City, of alien parents temporarily sojourning there, was a U.S. citizen. They were "natural" already; for the children of immigrants, birthright citizenship was the universal norm (local governments could order the deportation of obnoxious individual immigrants, but there wasn't a national policy). Miller's scenario is completely irrelevant to the realities of the time when the 14th Amendment was written.

The hard cases before 1866-68 were not immigrants, but people whose parents were born within the borders of the US: citizens of the Indigenous nations, and the freed descendants of enslaved Africans.

Indigenous Americans were originally denied birthright citizenship on the grounds that they were citizens of their own tribal nations, if they were born in acknowledged Indian territory; otherwise, at least from 1831, they were entitled to apply for naturalization and become citizens, especially if they served in the military, married whites, and/or lived on private as opposed to tribal land. Around the time of the 14th Amendment their right to be citizens was specifically tied to their willingness to pay taxes, in the Dred Scott decision and in the 1866 Civil Rights Act. The whole thing was impossibly cumbersome, though, and the federal government wanted them under its jurisdiction, naturally enough. 

Also, Native Americans troops played a loyal and distinguished role in the 1898 and 1917-18 wars,  and it was partly by way of rewarding them that Congress passed, and President Calvin Coolidge signed, the Indian Citizenship Act in 1924, extending birthright citizenship to all of them. This was not an adequate recompense for the centuries of persecution and despoiling of Indigenous peoples, and it didn't free them from discrimination and mistreatment of all kinds, but it was a start.

As for those of the enslaved who had become free through manumission or by buying their freedom, and their children, who were also free in some states, but in other states could be kidnapped and sold into slavery, particularly after the Dred Scott decision, and whose voting and other civil rights were questioned. After Emancipation, citizenship had to be assured to all Black people, and this is the reason for the 13th and 14th and 15th Amendments. It didn't apply to immigrants, because immigrants had those rights already, naturalization for themselves and birthright citizenship for their children.

The concept of "illegal aliens" in the US goes back only to 1875, when the Page Act banned the entry of Chinese women, and 1882, when the Chinese Exclusion Act banned all Chinese. It had a racial basis from the very start, as did its enforcement. For instance, there was no Border Patrol on the Mexican border (remind me to ask Trump if we should start calling that the American border) until 1904, as I've written before:

Chinese were deported on sight from the Pacific Coast ports, but eventually learned, like Central Americans and Haitians a century later, that they could make their way to Mexico instead and cross over the land border, or the shallow Rio Grande, and penetrate into the United States that way, and so they did, and in 1904 the Commerce and Labor Department instituted the Mounted Guards operating out of El Paso, a motley group that never expanded beyond 75 or so members, patrolling as far away as California hunting down the Yellow Peril. You bet they had horses, and probably whips too. They certainly had guns.

Dying in the desert. From Erika Lee, "Enforcing the Borders: Chinese Exclusion along the U.S. Borders with Canada and Mexico, 1882-1924" Journal of American History 89/1 (June 2002). The artist has taken care to depict the queue hanging from the back of the man's head, sign of his subjugation by the Manchu rulers.

So that's the origin of the Border Patrol right there, and when my dude the furious veteran border agent defends the use of a whip-wielding cavalry against Haitian asylum applicants with an appeal to the glorious old tradition, that's the glorious old tradition he has in mind, whether he knows it or not, racist af, if possibly a lot more violent and cruel. CBP was founded as a racist institution and remains one, regardless of any individual's desires, because that's how it's designed. This has been another edition of "Critical Race Theory Is Actually True". 

The question of whether the 14th Amendment's promise of birthright citizenship applies to the children of unauthorized immigrants was also originally tied to Chinese immigration, and thoroughly answered in the 1898 case of United States vs. Wong Kim Ark; Wong, whose Chinese immigrant parents had been living legally in San Francisco when he was born ca. 1873 but brought him back to China in 1889, had been denied re-entry into the country at the port of San Francisco on his return, claimed citizenship under his 14th Amendment right, following precedents in at least four different cases from between 1884 and 1892, but Wong's was the first to go to the Supreme Court, which found 7-2 in his favor that birthright citizenship applied to all, “excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory” (nor did the dissent make any mention of whether he or his parents were "subject to the jurisdiction of the US" but instead relied entirely on the Chinese Exclusion Act, which was itself repealed by Congress in 1943); a decision that has not been reversed in the past 129 years. Wong's parents were "illegal aliens" by definition, from the law of 1882, but that was no part of the argument. Wong was born in San Francisco, and that was all that needed to be discussed (he also grew up to work as a restaurant cook, an active participant in one of the most lovable contributions of Chinese to American culture). 

The idea of "illegal aliens" was to expand enormously from the Immigration Act of 1924, establishing a set of quotas, so that "illegals" could now come from practically anywhere, soon enough including the indigenous inhabitants of what was known before 1848 as "New Spain", who had freely crossed the border for more than ten thousand years, and still do, from Galveston to La Jolla; and eventually to refugees from conflicts like those that had inspired the Geneva Conventions.

A few words on the argument deployed by the Trump administration:

Fourteenth Amendment to the United States Constitution, 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.

Trump's executive order from January "Protecting the Meaning and Value of American Citizenship" suggests that there are categories of persons born in the United States who are not "subject to the jurisdiction" of the federal government and hence not citizens, specifically:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth. 

This is such bullshit I'm still gobsmacked months later. In the first place it doesn't even attempt to make a case against the baby, only against its parents. Section 1 doesn't say "all persons born...in the United States whose parents are subject to the jurisdiction thereof". And then do the authors have a clue what the word "jurisdiction" means?

1. Power of a court to adjudicate cases and issue orders; or
2. Territory within which a court or government agency may properly exercise its power. See, e.g. Ruhrgas AG v. Marathon Oil Co. et al. , 526 U.S. 574 (1999) .

Do federal courts not have power to adjudicate cases and issue orders involving persons who are unlawfully present in the United States or lawfully present but not permanent residents, or their infant children? Of course they do, and so do state courts, which have more occasion to deal with them. Plenty of persons who are not permanent residents or citizens are criminal defendants going on trial (though nowhere near as many as the native-born, who supply the nation with the vast majority of its criminals), and civil defendants or plaintiffs as well. They can get arrested for murder or DUI, divorced or adopted, contest wills or sue for personal injury. They can be subject to deportation orders, I believe Donald has heard of those. They can also be granted asylum, or temporary protected status, or participate in the DACA program. To say they aren't "subject to the jurisdiction of the United States" is beyond ridiculous, and to say their babies aren't is idiotic, and no argument depending on the idea that unauthorized people in the United States are not "subject to its jurisdiction" can be sustained in good faith. If there was an "entire literature" that justifies throwing it out, it would have been tried in court by now.

Because everybody knows what it is to be "in the United States" but not "under the jurisdiction" thereof. It's the status of diplomatic immunity enjoyed by the officials of foreign embassies and consular offices, who never have to pay parking tickets, which makes the local authorities really mad, but also can get away with other crimes ranging from shoplifting to murder. They can also be expelled from the US without any explanation, but it's the president who does that, and the courts don't have any jurisdiction over it, either; diplomats have no 14th Amendment due process rights. The whole arrangement goes back a long way, to the days of feudal courtesy, when war wasn't between nations but sovereigns, and the diplomats were traveling nobility. The French Revolutionary government, with its lack of respect for the nobility, violated the principle often enough, but they didn't last.

Judge Coughenour (of the US District Court for the Western District of Washington, putting a restraining order on the Trump EO) got it right. Among other things, the institution of birthright citizenship represents the character of the nation as founded on an idea, not an ancestry, embodied in the jus soli rather than jus sanguinis. That’s why the white nationalists hate it so much.