Supreme
Court: Children of Illegal Aliens or Tourists are not U.S. Citizens
By
Gabriel Canaan
www.americanthinker.com
On
the very day Donald Trump became president again, he signed an executive order
prospectively eliminating birthright citizenship for children born to aliens
unlawfully present in the United States.
Immediately,
lawsuits were filed in a half-dozen jurisdictions across the country
challenging this order.
The
groups bringing these suits claim the order disrupts long-standing legal norms
governing citizenship. Yet, in fact, Trump’s contention — that birthright
citizenship is not possessed by children of illegal aliens under the “correct
interpretation of the law” — is exactly right.
Birthright
citizenship is conventionally understood to apply to any child born in the
United States, regardless of the immigration status of that child’s parents.
This view is based on the common law principle of jus soli (“right of
soil”), which is said to be incorporated in the Citizenship Clause of the
Fourteenth Amendment. This understanding of the Citizenship Clause, however,
despite its prevalence in academia and political commentary, is based on a mistaken
and incomplete reading of controlling Supreme Court precedent.
In
fact, birthright citizenship, as provided for in the Citizenship Clause, as
that clause has been authoritatively construed by the Supreme Court, is
possessed only by children born in the United States to at least one parent who
is lawfully residing in the United States.
Ratified
in the aftermath of the Civil War with the aim of remedying the injustices of
the Dred Scott decision, the Fourteenth Amendment granted citizenship to
“all persons born ... in the United States, and subject to the jurisdiction
thereof.” This latter phrase has been wrongly equated with “subject to the laws
thereof,” and thus to entail that all persons born in the United States are
U.S. citizens, with only a few narrow exceptions, such as children born to
diplomats.
Yet
the Supreme Court has construed the phrase “subject to the jurisdiction” more
narrowly, most notably in seminal cases that have been taught — well or ill —
in law schools ever since.
In
the 1884 case Elk v. Wilkins, decided when American Indians were
increasingly integrating into mainstream American society, presented the
constitutional issue of whether Indians who had been born within the allegiance
of a tribe were “subject to the jurisdiction” of the United States at birth,
and thus born American citizens under the Fourteenth Amendment.
The
Court ruled that they were not “subject to the jurisdiction” of the United
States, on the ground that “jurisdiction” in the Citizenship Clause meant
complete jurisdiction, which implied “direct and immediate allegiance” to the
United States. The parents of children born in the allegiance of a tribe had
only indirect and intermediate allegiance to the United States, through their
tribe. (Today, by a subsequent act of Congress, Indians born on reservations
are U.S. citizens at birth.)
Twelve
years later, in Wong Kim Ark v. United States, the citizenship status of
an American-born man of Chinese descent was the issue.
Wong
Kim Ark had been born in San Francisco to Chinese nationals, and had been
denied entry to the United States after returning from a visit to China as an
adult. At the time, Chinese nationals were precluded by treaty from
naturalizing as U.S. citizens. Nevertheless, after recounting the history of
the common-law jus soli doctrine, and its influence on our Constitution,
the Court held that, because the petitioner had been born to parents lawfully
residing in the United States, he had been born within the “allegiance and
protection” of the United States, and therefore at birth was “subject to the
jurisdiction” of the United States. He was thus born a citizen under the
Fourteenth Amendment.
That
the petitioner’s parents had resided here with the permission of the United
States was central to the Court’s holding. Chinese nationals who remain
“subjects of the Emperor of China…are entitled to the protection of and owe
allegiance to the United States, so long as they are permitted by the United
States to reside here,” the decision reads, “and are ‘subject to the
jurisdiction thereof,’ in the same sense as all other aliens [lawfully]
residing in the United States” (emphasis added). The Court explained that to
“reside,” in this usage, means to live in a place with the intent to remain
there, but not necessarily indefinitely. It is a broader category than
“domiciled,” and could apply to long-term visa holders, as well as to lawful
permanent residents.
The
Court’s interpretation of the Citizenship Clause of the Fourteenth Amendment
thus limits its application to children of aliens residing in the country with
permission. This requirement implies that children born to foreign nationals
living in the country without permission are not subject to its
jurisdiction, and that mere tourists, since they are only visiting and do not
reside here, also are not so subject. This crucial qualification of common law
birthright citizenship by the requirements of both residence and permission therefore
excludes from citizenship at birth children both of tourists and of those
residing in this country without permission — that is, illegal aliens.
To
disregard these requirements would involve interpreting the Court to mean that
illegal aliens are within the “allegiance and protection” of the United States.
But
the Court specifically stated otherwise, holding that Chinese nationals who
were not permitted to reside in the United States were not within its
allegiance and protection. The Court could hardly have held otherwise. The
phrase “allegiance and protection” describes the reciprocal obligations of
citizens and the state that are foundational to a nation. Since illegal aliens
are at all times subject to apprehension and deportation, they can hardly be
regarded as within the “protection” of the United States.
In
further evidence that Wong Kim Ark held that illegal aliens are not
subject to the jurisdiction of the United States for citizenship purposes, the
Court cited to its own earlier ruling in another immigration case, from 1893, Fong
Yue Ting v. United States. There, the Court addressed the legal status of
non-resident or unlawfully-present aliens: while they are subject to our laws,
they remain outside the government’s “complete jurisdiction.” Had the Court
held in Wong Kim Ark that all children born in the United States and
subject to its laws — such as illegal aliens—were citizens, it would have run
afoul of the combined holdings of Elk — that jurisdiction for
citizenship purposes means complete jurisdiction — and of Fong Yue Ting —
that illegal aliens and non-resident aliens are outside the complete
jurisdiction of the United States. The residence and permission requirements of
Wong Kim Ark are therefore necessary to harmonize that case with those
prior cases.
Wong Kim Ark’s inclusion of residence and
permission requirements marks the Court’s departure from the English common law
understanding of birthright citizenship in favor of one more compatible with
American constitutional principles.
Indeed,
leading constitutional scholars at the time noted that the American approach
required residence while the British did not.
The
doctrine of jus soli as articulated by common law scholars such as Coke
and Blackstone is a product of feudalism: a subject owes a duty of perpetual
loyalty to the Crown under the protection of which he is born.
In
stark contrast, the American Revolution severed the colonies’ duty to the king
in favor of a compact operating by consent of the governed rather than by
perpetual, unchosen duty. The purpose of the Civil Rights Act and the
Fourteenth Amendment was not to reinstate the common law version of birthright
citizenship; rather, it was to extend the principles of the Declaration of
Independence to freed slaves and to nonwhite immigrants such as
Chinese-Americans.
As
it is currently applied, birthright citizenship not only returns us to a feudal
past, but also undermines the ability of the people of the United States to set
forth standards by which children born to foreign nationals may become
citizens. It incentivizes “birth tourism” and mass illegal immigration, both of
which treat the United States as a provider of material benefits rather than a
political community towards which one owes allegiance and duties. Unlike illegal
aliens and temporary guests, lawful permanent residents are incentivized to
invest in their political community, and to adopt the customs and civic
responsibilities of that community. Their children’s subsequent inheritance of
those responsibilities further facilitates assimilation and social cohesion.
The
rule of Wong Kim Ark v. United States reflects the compact approach to
self-government inherent in the founding principles of this country while
serving the purpose of the Fourteenth Amendment. Applying the rule as it was
intended to be understood would remedy the above-mentioned policy deficiencies
of an over-expansive view of birthright citizenship without the need to amend
the Constitution, and efficiently resolve the flurry of lawsuits against President
Trump’s executive order.
