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2011

How Safe Is The 14th Amendment's Guarantee Of Birthright US Citizenship From Attack By The Far Right

Written by Roger Algase to www.ilw.com
W.D.  Reasoner's attack on the 14th Amendment's guarantee of birthright US citizenship for any child born in the US (except for children of foreign diplomats) in the May 19 issue of ID is long on the all too familiar right wing scare tactics of hundreds of millions of Mexican women descending on the US to have US citizen babies who will then somehow all morph, as in a grade D horror movie, into a Yemeni terrorist holding a US passport. But his article is short on any explanation of how his proposed "conversation" about how to go about stripping millions of American citizen babies of their birthright US citizenship because of their parents' immigration status, or lack of it, or because of fears that a particular baby might become a terrorist 20 years down the road, can withstand the plain language of the 14th Amendment.



As Reasoner points out himself, in what is virtually the only part of his article that is based on reason rather than trying to exploit fears of a US takeover by Mexicans and Muslims, birthright US citizenship is "enshrined" in the 14th Amendment. If so, what is the use of complaining about it? No reasonable person would give the 14th Amendment any more chance of being amended or repealed than Bin Laden would have of coming back to life. (It may be worth pointing out, incidentally, that Bin Laden was not a US citizen, just in case Fox News or some other right wing propaganda outlet ever tries in the future to sow confusion on this point. Once respect for the truth goes out the window, as it did in the case of the late, but not lamented, "birther" scam involving President Barack Obama's citizenship, anything might be possible.)

But would it really take repeal of the 14th Amendment in order to bring about Reasoner's nighmare fantasy of an America with a permanent underclass, in which most American-born white children would automatically be citizens at birth, since their parents would be either US citizens or foreign citizens considered to have permanent ties with the US (as most Europeans are regarded by the general public, rightly or wrongly, to have); while millions of Latino, Asian, Middle Eastern, African and Caribbean children might become either outcasts, or wind up in a kind of limbo between second class rights of residence and completely illegal status, similar to Koreans in present day Japan or only barely tolerated minorities in some other countries? Or is the 14th Amendment a less than totally secure fortress that could conceivably be undermined and overthrown from within?  

The problem, at least for those of us who believe in America as we know it, a country in which each person is judged on his or her own merit, and not on the real or supposed immigration "sins" of his her parents, or on profiling at birth to predict whether he or she might become a terrorist two decades later on, is that the 14th Amendment guarantee of birthright citizenship is not as unassailable or immune from attack as many people would like to think. Rather, it rests on what could turn out to be the rather slender thread of the US Supreme Court decision in the 1898 case of US v. Wong Kim Ark (169 US 649).

I will discuss this landmark decision in more detail in Part 2 of this two-part comment, to appear in the near future.  But for the moment, at the risk of giving aid and comfort to those who would like to turn America into a two-class society, or even worse, to take this country back to the days of the Dred Scott decision, when an entire race of people was barred from US citizenship through birth in this country solely because of their ancestry, I will make only two points about the Wong Kim Ark decision. First, by its own terms, that decision only held that a US born child of foreign citizen parents who been living in the US permanently, and legally, for many years was an American citizen at birth. It did not deal with the citizenship rights of children whose parents were in this country illegally or as short term visitors. That issue was not before the court.

Second, the court's holding that (almost) all children born in the US were US citizens by birth was based on the proposition that a) the framers of the 14th Amendment intended to adopt the English Common Law doctrine holding that all persons born in the kingdom were automatically English subjects, and that b) the above was in fact the doctrine of the English Common Law. Both of these propositions, as I will show in Part 2, are by no means beyond question.

As I will also show in Part 2,  the Wong Kim Ark decision would have been on much more secure grounds if it had been based only on a dicusssion of Roman law, especially ancient Roman concepts of jurisdiction, which are so central to the language of the 14th Amendment. But instead of relying on this concept exclusively, the Wong Kim Ark decision went off the track and into areas where its reasoning is much harder to justify. I will leave further discussion for Part 2. Stay tuned.
About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.
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