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?”

  1. Buddha,
    It has been my observation that conservative concern for the unborn ends in the delivery room because the possible expenditure of public dollars is implicated beyond that point. It will be interesting to see how solicitousness toward the unborn will be impacted once the bills start coming in. The Missouri legislature must next create an Office of Counsel for the Protection of Fetal Life and provide sufficient funding for its operations.

    With regard to attorney-client communications, the legislative intent behind the new law would certainly be construed to create a rebuttable presumption that a fetus would prefer to be born, thank you. Indeed, that presumption should prevail even in instances of rape and incest. In fact, I can think of only a couple of circumstances in which fetal life, if able to make an informed decision, would choose not to live. The effect of the legislation may be to make abortion virtually impossible in Missouri under the 14th Amendment.

  2. tomarch,
    Headless bodies careening through the Arizona desert provides great material for a low-cost zombie movie. Roger Corman is probably drafting a script as we speak.

  3. I’m consistently bothered by the fact that the right wing constantly argues from a position of weakness and fear.

    So what if we allow “anchor babies”? Is the US so weak that we can’t accept, integrate and benefit from these immigrants?

    What, exactly, is the problem? Why, exactly, should we be concerned about this?

    Some of us have delirious hallucinations of headless Mexican bodies staggering through the deserts of Arizona, pregnant with enough fetuses to make the Ocotomom jealous, with armloads of coke, and an al Qaeda terrorist riding piggyback. The rest of us live in reality with it’s messy “facts.”

    —————————————-

    Two “oddball” issues with US citizenship:

    1. Up until some point (I believe in the early 20th century), when a US citizen woman married a man with a different citizenship, she was instantly considered to be a citizen of that other nation by the US!?!?! Totally crazy from our perspective today, and, of course, it didn’t work the other way around when a US man married a foreign woman. There are tons of naturalization records from widows who, despite living their whole lives in the US, had to re-apply for US citizenship when their foreigner husband died.

    2. As part of his fascinating TV series, “African American Lives,” Prof. Gates examined the genealogy of actor Don Cheadle. One of his ancestors was a slave held by Native Americans, but outside of the then-existent boundaries of the US. When the Emancipation Proclamation was enacted, this man became nominally “free,” but was not formally a US citizen, because he was born and lived outside of the US territory.

  4. Mike A.,

    Interesting thought. Talk about creating a potential glut on the system!

    I wonder how the attorneys-ad-litem would conduct client interviews?

    With a stethoscope or a Ouija board?

  5. Buddha,
    I know that it’s off topic (perhaps not so much off topic as one might think), but I read the Huffpo piece on the Missouri law. It’s clear that the legislature of that state was making a religious statement, because they certainly have not thought through the legal implications of the legislation, and there are many. I have long argued that the abortion debate will never get anywhere until we determine as a matter of public policy how we are to define human life. That it clearly an issue that should not be decided on a state-by-state basis.
    But the Missouri legislature having acted, I suggest that the performance of an abortion in Missouri henceforth requires that the conceptus be given notice and an opportunity to be heard on the issue, which in turn should require appointment of an attorney-ad-litem and appropriate judicial proceedings.

  6. Woosty,
    you’re not wrong, but it’s a tactical matter to me. Instead of trying to answer nonsense with reasoned debate and facts, I’m suggesting that it’s time we turned their own medicine back on them. We should debate them using hyperbole, ridicule and all the other shameful tactics they use, except for copying their lying natures.

  7. “One of the great problems haunting political discourse in our country today is that those whose agenda is fear and strife will raise a non-issue and then have it debated as a real issue……”
    yes, but that doesn’t lessen that it is now, currently, (despite the illegitimate beginnings…) a real issue…

    “FOX News and Murdoch’s minions are pst masters of this techinique and unfortunately those of us more sound of mind get drawn into the simulated debate. ”

    -remember what Molly Ivans said…”You Gotta Dance With Them What Brung Ya” 😉

  8. I have previously stated that I won’t take part in a debate based on hate and fear and I remain wedded to that stance

    however … thanks to Mike Spindell, Vince Treacy, James M., Nal, and so many others for all the info … I’m glad I continued to read the thread …

  9. One of the great problems haunting political discourse in our country today is that those whose agenda is fear and strife will raise a non-issue and then have it debated as a real issue. The engagement in the debate lends credence to the crackpot issue and makes it appear as a problem for our times.
    The immigration issue is one raised by opportunists and racists to foment fear and advance their nefarious agenda. FOX News and Murdoch’s minions are pst masters of this techinique and unfortunately those of us more sound of mind get drawn into the simulated debate. Vince and other have lent their sholarly and informative views here, but frankly from my point of view there is no issue of importance to be resolved.

  10. “If the result poses a problem today, do what they did.

    Amend the Constitution.”

    Good luck with that for the purposes of the 14th Amendment, Tea Baggers.

    Vince,

    Another fine summation.

  11. JT wrote: QUOTE 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. UNQUOTE

    This may be a misinterpretation of Rep. Howard’s position. The full sentence read: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, BUT WILL INCLUDE EVERY OTHER CLASS OF PERSONS.” (CAPITALIZED WORDS ADDED FROM ORIGINAL).

    Howard also said: QUOTE I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. UNQUOTE

    It appears that Howard meant that the clause would exempt aliens such as ambassadors and foreign ministers, not all aliens. Diplomats are excluded by the language of the Fourteenth Amendment, because they are not subject to U.S. jurisdiction because of their diplomatic immunity. They cannot be arrested; they can only be declared persona non grata, and asked to leave the country.

    Similar limitations on jurisdiction applied to hostile alien military, and (at the time) to non-taxed Indians.

    Other aliens are not immune from U.S. jurisdiction. The illegal alien and her child are subject to the “full and complete jurisdiction on the part of the United States” as long as they remain in the U.S.

    Immediately after Howard read the proposed amendment, Rep. Cowan objected because he believed the Mongolian race should be excluded. If Howard had meant that all aliens should be excluded, then Cowan would not have objected.

    The Court in Wong Kim Ark described the debate:

    “The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words ‘or naturalized’), and reading: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’ Mr. Cowan objected upon the ground that the Mongolian race ought to be excluded, and said: ‘Is the child of the Chinese immigrant in California a citizen? . . . I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that, within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit.’ Mr. Conness, of California, replied: ‘The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.’ ‘We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of the United States to be entitled to civil rights and to equal protection before the law with others.'” Cong. Globe, 39th Cong. 1st Sess. pt. 4, pp. 2890-2892.” 169 U.S. 649, 698-99.

    The Court concluded with the observation that “It does not appear to have been suggested, in either house of congress, that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the fourteenth amendment.”

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

    It was therefore generally understood by the framers of the 14th Amendment that all children born in the United States would be citizens by birth. I think that the anti-slavery Republicans at the time wanted to put the issue of citizenship beyond the reach of future racist legislators, jurists and Presidents. They had just enacted the Civil Rights Act of 1866, but the former slaveowner, President Andrew Johnson, had vetoed it, and they had to override the veto. They did not want to let a future Congress try to deny citizenship to freed slaves by future legislation. They did not want to let them deny citizenship to the children of Chinese or any other aliens.

    If the result poses a problem today, do what they did.

    Amend the Constitution.

  12. James M., I agree with your point. I was just trying to update the status of Indians.

  13. JT wrote: “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.”

    That is a very narrow reading of Wong. It formulated the general principle that all persons born “subject to the jurisdiction” of the United States are citizens, with very narrow express exceptions, and then applied that principle to Wong.

    There is no indication that the Court meant to limit its holding to the strict facts before it, or to deny precedential value to its holding, as the Court did in Bush v. Gore. Of course, it did not issue a holding that applied to illegal aliens, since that issue was not before it. For the most part, aliens did not become divided into illegal and legal until immigration was limited in the 1920s.

    It is true that Wong Kim Ark involved a person born to legally domiciled parents . His “father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China.”

    Wong was a landmark case. After a long review of the law, the Court set forth its “conclusions”:

    QUOTE The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ UNQUOTE

    The Court also noted the consequences of an interpretation that would allow the exclusion of the children of aliens from citizenship by birth: “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” At page 694.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

    These conclusions set forth the fundamental principles of citizenship adopted by a majority of the Court in a major case of first impression. This is not mere dicta. This is what they call the black letter law. The Court then applied these principles to the particular case before it to rule that Wong, whose parents were aliens who were domiciled in the U.S., was a citizen by virtue of his birth under U.S. jurisdiction.

    The principles of Wong Kim Ark have not been limited or distinguished in and subsequent cases, despite many opportunities. It would be interesting to see if anyone has cases where a court or agency denied citizenship to an infant born in the U.S. because of the illegal or temporary status of the parents.

    A lot of ink has been devoted to the word “domicile.” It usually means a place where a person resides with a permanent or indefinite intention of remaining there, after abandoning any other prior domicile. While that could serve as an argument against children born to tourists, the fact is that most undocumented aliens fully intend to remain in the U.S. forever, and have abandoned all ties to their old country. They have made the U.S. their domicile.

    At any rate, any attempt to exclude an infant from citizenship on the basis of domicile runs aground on the inexorable language of the 14th Amendment. It applies to all who are born under the jurisdiction of the U.S. Congress and the courts may not violate that express constitutional language. If the U.S. has jurisdiction, the Amendment seems to apply.

  14. Vince Treacy,

    I wasn’t suggesting that Native Americans weren’t citizens, but trying to correct Capital Mike’s statement that “subject to the jurisdiction thereof” referred only to diplomats and their families. Even though it’s obsolete, I think that including the fact that the phrase excludes sovereign Indian tribes is helpful in understanding the original context and arguing against anti-immigration activists who claim the phrase requires that the parents be here legally.

  15. James M. asked if “subject to the jurisdiction thereof” might have excluded Indian tribes within the United States.
    In 1866, it was understood that the citizenship definition excluded Indians who were not taxed, as the U.S. had made treaties with Indian tribes, and U.S. jurisdiction over many Indians was limited.

    This is all obsolete now. Indians were granted full U.S. citizenship by statute in 1924.

    http://en.wikipedia.org/wiki/Indian_Citizenship_Act_of_1924

    Alien enemies in hostile occupation have always been considered exempted by the phrase “subject to the jurisdiction” because they are not subject to the jurisdiction of the occupied country. This concept was carried over from the English common law, which also exempted diplomatic personnel.

    Nal wrote: “If a person can be arrested, that is ‘subject to the jurisdiction’ of the United States.

    Very good point, Nal.

  16. This is about brown people. The thousands who go to college and overstay their visas are okay. We don’t keep track of who leaves, so have no handle on how many of the “good” ones are here, or on how many “bad” ones do the stoop work the rest of us find distasteful. They don’t dare reveal themselves for fear of imprisonment and deportation, so are taken advantage of by their bosses.
    Do you find anything wrong with this picture?

Comments are closed.