Congress, Constitutional Law, Criminal law, Politics, Society

Who Is A Citizen?

Here is today’s column in USA Today giving a bit of constitutional and historical context for the raging debate over illegal immigration.

The 14th Amendment doesn’t answer this question, as today’s immigration debate exposes unsettled business.

BYLINE: Jonathan Turley

The raging debate over illegal immigration has grown on a steady diet of rhetoric and recrimination. However, beneath all the hyperbole is a long-standing and unresolved debate over what it means to be a citizen. It turns out that the most foundational right contained in the Constitution — citizenship itself — is poorly defined and even more poorly understood.

There has long been a conscious avoidance of the question over so-called birthright citizenship — citizenship claimed by the children of illegal aliens. Indeed, the question has become increasingly difficult to address as the numbers of birthright citizens grow each year. In 2008, one in 12 babies in this country was born to illegal immigrants — 8% of all births. This is not counting the millions of prior such births, often referred to by critics as “anchor babies.” With any change in the definition of citizenship assuring tremendous social changes and upheaval, the question has been left unresolved for more than two centuries.

Muddled then, muddled now

Given our roots, it should not be too surprising that citizenship was left ill-defined by the Framers. After all, this was the nation formed by citizens of other nations — a common covenant based as much on what we rejected as what we embraced. Indeed, in the Declaration of Independence, we defined ourselves largely by process of elimination — we would no longer live by the long list of examples of “absolute Despotism.”

Notably, one of the complaints was that the king “endeavored to prevent the population of these states; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.”

Of course, the matter became more complex with the ratification of the Constitution and, more important, the later adoption of the 14th Amendment in 1868. That amendment spoke directly to the issue of citizenship, stating in the very first line: “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.” The amendment has become the battleground for opponents and advocates of birthright citizenship, with each side claiming clarity in its meaning. The fact is that the record was as muddled then as it is now.

The 14th Amendment was adopted in response to the infamous Dred Scott decision denying former slaves the protections of citizenship as well as “Black Codes” that created barriers to former slaves in the South. On its face, the language would appear to support birthright citizenship. However, it has long been argued that such children are not “subject to the jurisdiction” of the United States because their parents are properly subjects of their home country.

The original debate itself offered support to both sides of today’s debate. The drafter of the Citizenship Clause — Sen. Jacob Howard of Michigan — stated clearly that the clause did not include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” This view was supported by critical leaders such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois. However, other senators like John Conness of California believed that anyone born in the U.S. would be a citizen.

Citizenship elsewhere

This debate between jus soli (law of the ground) and jus sanguinis (blood right) continues to divide leaders and nations with debates similar to our own. Many countries have long recognized jus soli, or birthright citizenship. Indeed, at the time of our founding, England recognized birthright citizenship. In Calvin’s Case in 1608, the court ruled that “a person’s status was vested at birth, and based upon place of birth — a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.”

Conversely, nations like Germany follow jus sanguinis, establishing citizenship by one’s ancestors or connections to the country as opposed to merely birth location. Other countries have a hybrid approach. The United Kingdom, for instance, requires that the parents be legal residents.

For its part, the U.S. Supreme Court has never directly ruled on the issue of birthright citizenship. In 1898, in United States v. Wong Kim Ark, the court found that the child of Chinese immigrants was still a citizen under the 14th Amendment because he was born on U.S. territory. However, his parents were here legally as permanent residents.

Congress could force the issue into the courts through legislation. Yet, the Supreme Court would in all likelihood rule in favor of birthright citizenship. This process — legislative and then judicial — would unfortunately short-circuit the national debate. Some senators, as well as others, are pushing for a constitutional amendment, which is a better approach for this type of question. While the Framers made the amendment process difficult, it was designed for this type of question — to prevent “impulse buy” amendments adopted in the heat of passion and anger.

Since the founding, we have spent more time defining the rights of citizens than citizenship itself. It is not clearly answered in the history or language of the Constitution, despite representations on both sides of the debate. Rather than continuing to question the citizenship of millions, we should first resolve what it is to be a citizen. It is not a new question, but it is a question that we might now want to answer.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

54 thoughts on “Who Is A Citizen?”

  3. I agree with mespo’s thoughts on the citizenship debate and with Mike S.’s observations on the political realities of immigration. I would add only that in my opinion, it was the English notion of jus soli, as expressed in Calvin’s Case, that most strongly influenced the Founders’ views on citizenship. There is plenty of pre-14th Amendment evidence to support this view, much of which can be found on the several “birther” debates we have had on this site.

    I strongly oppose any effort to modify the 14th Amendment because the proponents of change are the very people Mike S. described in his post. Their desire to “throw the babies out with the bath water” is purely bigotry disguised as principle.

  4. Capitol Mike,

    I haven’t done any research, but do you think “subject to the jurisdiction thereof” might also refer to sovereign Indian tribes within the United States? If anyone knows of a law review article on the subject, I’d be interested.

  5. Should Female Reporters wearing provocative clothing be allowed in the Football Players Dressing Room and then complain about sexual harassment?

    Ines Sainz: ‘I’m Not Trying to Provoke Anything’
    Updated: 1 hour 58 minutes ago

    (Sept. 14) — Ines Sainz doesn’t understand what all the fuss is about.

    Yes, she wears low-cut shirts, tight jeans and has photos on her employer’s website showing her in a bikini. But that has nothing to do with being a professional sports reporter for Mexico’s TV Azteca, she said today.
    *******
    “The skintight jeans — er, we mean, the sensible outfit that sparked the current controversy,” reads a caption under a slide show titled “Baby got back: Meet Ines Sainz” on The Daily Caller website, a political blog founded by pundit Tucker Carlson and Neil Patel, a former adviser to Dick Cheney.

    http://www.aolnews.com/nation/article/ines-sainz-my-clothing-style-is-no-invitation-for-abuse/19632772?ncid=webmail

  6. I think you are stretching the accepted meaning of “subject to the jurisdiction thereof” beyond its long accepted meaning for the sake of argument. Children of diplomats are not subject to the jurisdiction of the United States, just as diplomats and dependents of diplomats who break U.S. law are not subject to legal process in the U.S. That, and that alone was the meaning of “subject to the jurisdiction thereof” in the 1800s at the time of adoption of the 14th Amendment, and that is the meaning now.

    The children of non-diplomat aliens who entered the U.S. in the 1800s have always been accepted as U.S. citizens because immigration law as we know it now did not exist in the 1800s. Many people migrated to U.S. territory simply by crossing the borders of British and Spanish territory (later Canada and Mexico) or by jumping off a ship. Those migrants were considered aliens subject to the Immigration Act of 1790, but the children of those migrants became citizens by virtue of being born in the U.S. The children of aliens did not undergo a formal process of naturalization. This practical reality was codified into law by the 14th Amendment.

    There really is no controversy about the history of the 14th Amendment. What you are suggesting would require every offspring of immigrants of long past generations to prove that their ancestors came to the U.S. legally. My great great great grandparents came to the U.S. from Scotland in the 1820s. What proof do I have that they came legally to the U.S.? None whatsoever. Does that make me and millions of others stateless persons who cannot prove that they were not preceded by illegal alien anchor baby ancestors? No, that would be an absurd interpretation of the 14th Amendment. The fact that the next generation of ancestors was born here ends the argument. They were citizens, therefore I am a citizen. So too, the child of an today’s illegal alien is a citizen, and their child is a citizen and so forth. To think otherwise, produces an absurd conclusion of law.

  7. Oh C’mon, let them be citizens. After Clinton, Bush and Obama, it isn’t like we have that many rights left anyway. And there aren’t that many; the illegal immigrant population is declining very rapidly. I figure it is probably easier to get into Mexico and then they are just passing through on their way to Canada.

    Maybe this was the Bush/Obama secret plot all along: Bankrupt the country, strip us of our fundamental rights, plunder the treasury for the rich and give us a third world economy and a wealth-skewed justice system, and hey! What could they possibly want HERE?

  8. Mike S.,

    I agree with everything you have stated. I am also pleased that you are back and seeing your face on a more regular basis…….

  11. Citizenship in our country has always been a mix of the economic, political and xenophobic needs of a given era.

    The Louisiana Purchase opened vast tracks of barren land needing people to occupy and make use of it. Since blacks were held as slaves, the country’s doors opened for those with the desire to go west and build new lives away from the poverty of their own lands.

    When the trans-continental railroad system and its byways needed building cheap labor, such as the Chinese were brought in by the thousands too assist, but found the atmosphere less welcoming when they decided to stay on.

    The potato famine in Ireland brought with it massive immigration and that worked out because land was plentiful and the industrial revolution was beginning. The end of slavery found an even more encouraging immigration policy in order to keep blacks “down on the farm” by debarring them of the opening job market.

    Jew started flocking here in the 1880’s because the pogroms in Europe’s “Pale” were a tip=off to the more adventurous of worse days coming. The Jews, literate by religious tradition and skilled in the few trades Christianity had allowed them, found work in the Cities.

    However, the “mythical melting pot” never existed as each ethnicity battled the others just to be able to co-exist. During the Civil War there were tremendous battles between the Irish and Afro-Americans over essentially the work available. That this
    amalgamation of ethnicity never came to pass was a direct factor of the privileged classes needing this inter-ethnic strife to keep the masses from seeing who really held them in chains.

    While this represents a rather simplistic characterization, the reality has required many, many books and articles, it is one that rings true. for instance isn’t it interesting that California’s massive agriculture industry required the importation and then expulsion of Mexicans who worked cheap.

    Jews, who were allowed to emigrate basically without restriction through the 1920’s, suddenly found quotas arising in tandem with Hitler’s Germany. Castro’s revolution allowed unlimited influx of Cubans since that matched the political sentiments of the day.
    Same was true of the Vietnamese, Thais, etc. after we lost the
    South East Asian War. Microsoft hires a lot of Indians to come to the US and replace its own workers at half the pay. And so it goes…..

    Immigration is not a constitutional issue, but rather one based
    on the economic need of the ruling Corporatocracy and the bigotry that can be stirred in people’s hearts for political gain.

  14. However, it has long been argued that such children are not “subject to the jurisdiction” of the United States because their parents are properly subjects of their home country.

    I find this argument weak. If a person can be arrested, that is “subject to the jurisdiction” of the United States.

  15. And has anyone ever read the totality of the 14 Amendment?

    We all (most) are aware of Sections 1 and 5….2, 3 and 4 leave room for some real debates on what IT IS OR IT ISN’T…..especially since the NSA, Homeland Security and FEMA have defined certain things….under the Aiding, Comforting or Trading with the enemy act…whatever you want to call it the the US has decided that that this is ground to be charged with treason….so does this mean that if a campaign contribution comes from such a group you can be expelled from Congress or Impeached or …….

    This issue is going to be the corner stone for a lot more debates…….

    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.

    Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

    Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  16. why not have a new amendment and let the people choose? Seems to me current citizens have a right to determine who may be considered a citizen. A national debate would be good on this subject.

  17. This is an issue that is divisive a being pro-life or pro-choice. What should be do with folks who parents are here illegally to start then have a child and then they (the parents) become naturalized. Is the child still illegal because the parents were not citizens to being with?

    I see it as a non issue, all should be welcome within certain parameters. Such as not at war, wait…we have kurds….Vietnamese…..oh wait we have them too….how about…Rwandans….oh, we have them….dang…it seems like we have a problem Houston……

    It should also be noted that when these folks come to the US they get tax breaks 3 out of 5 years…to get established….

    Then again…I am not digging trenches with shovels or picking fruit or vegetables (farm labor) for about 2.15 to 2.20 cents per hour…so do I really want the jobs that they are doing?

    Whats that saying at Ellis Island? Oh yeah…..it does not mean anything anymore….how about at the Lincoln Memorial?…that too antiquated as well….

  18. “Since the founding, we have spent more time defining the rights of citizens than citizenship itself. It is not clearly answered in the history or language of the Constitution, despite representations on both sides of the debate. Rather than continuing to question the citizenship of millions, we should first resolve what it is to be a citizen. It is not a new question, but it is a question that we might now want to answer.”

    *******************

    It is the work of the law to define and judge conduct, not the status of persons. The term “citizen” seems a very simple concept and one understood by most persons to mean a human being who is either born in a defined jurisdiction, born to parents of that jurisdiction regardless of their happenstance of birth, or persons who seek, through lawful process, to become affilaited as a citizen with that jurisdiction. The dichotomy between jus soli and jus sanguinis is a false choice, as both are reason-based and equally valid. To complicate the matter further seems to be a great disservice and merely a vehicle to deny some people rights to the benefit of others. I see a dispute without an issue.

  19. FYI:

    “Sometime in 1999, a construction electrician received a new work assignment from his union. The man, Sinclair Hejazi Abdus-Salaam, was told to report to 2 World Trade Center, the southern of the twin towers.

    Related
    Times Topic: Muslim Community Center in Lower Manhattan (Park51) In the union locker room on the 51st floor, Mr. Abdus-Salaam went through a construction worker’s version of due diligence. In the case of an emergency in the building, he asked his foreman and crew, where was he supposed to reassemble? The answer was the corner of Broadway and Vesey.”

    http://www.nytimes.com/2010/09/11/nyregion/11religion.html?_r=1&sq=mosque%20at%20the%20world%20trade%20center&st=cse&adxnnl=1&scp=1&adxnnlx=1284460054-J9EqU0eas+gbDwW5T/U/aw

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