The debate of who should be and who should not be a citizen of our great country has raged for almost as long as the U.S. has existed.  At some point in time, the citizenship status of every non-white, non-male person has been challenged.

One would think that our found document – the U.S. Constitution – would’ve addressed this very issue; however, it really did not.  Instead, it gave Congress the power, exclusive of the states, to grant citizenship by naturalization – but set no standards for so doing.  Only to muddy the waters even more, the Constitution also provides that only a “natural-born citizen” could be elected president.  Once again, that term is not defined, and has led to more than one question about presidential candidates such as John McCain, George Romney and Ted Cruz, but that is a story for another day.

This has resulted in a rocky, and somewhat unflattering, history on the issue.  Starting in 1790, Congress set the first standard for naturalization in the Naturalization Act of 1790.  This act linked race to citizenship by only allowing “free white persons” to naturalize.  Of course, this did not only prohibit slaves for becoming citizens, but also indentured servants (white or black), free blacks, and eventually, Asians.  Also, while women were included in the act, their citizenship status was linked to that of their fathers, and citizenship was inherited exclusively through fathers.  But keep in prospective, the Naturalization Act of 1790 governed only naturalization – not birthright citizenship.  The universally held, but unwritten law in the United States at that time was that if you were born on U.S. soil, you were a U.S. citizen.

Then enters the U.S. Supreme Court and its 1857 Dred Scott decision.  In Dred Scott, the majority found an exception to the unwritten law that if you were born on U.S. soil that you were a U.S. citizen.  In that case, the majority found that a person of African heritage was not a citizen, even if born here.  However, Dred Scott did not last long, and was overruled – not by another Supreme Court decision – but by the Civil War.

Following the Civil War, the Civil Rights Act of 1866 was passed, and then followed by the Fourteenth Amendment in 1868.  By these acts the unwritten law regarding citizenship was abolished and replaced by written constitutional protections.  These protections hold that “all persons born or naturalized in the United States, and subject to the jurisdiction therefor, are citizens of the United States….”    This settled the issue, right?  Unfortunately, it did not.

Following passage of the Fourteenth Amendment, controversies remained as to the citizenship status of African-Americans – even those born here.  This was exacerbated by questions involving the citizenship status of Native Americans.  However, with time (and passage of additional legislation), the citizenship status of African-Americans became accepted, and the focus of distain was turned to Chinese-Americans.

The Chinese Exclusion Act of 1882 prohibited Chinese from becoming naturalized citizens.  Accordingly, the U.S. Department of Justice fought to persuade the Supreme Court that Chinese children born in the United States were not citizens, despite the Fourteenth Amendment, arguing that the children were not “subject to the jurisdiction” of the United States.  Sound familiar?  This issue was finally put to rest in the 1898 Supreme Court case of United States v. Wong Kim Ark, when the Court rejected the U.S. Department of Justice’s argument.  As the Court noted in its decision, such a position “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.”  Following World War II, California attempted to have the Wong Kim Ark case overturned, at least as it pertained to Japanese-Americans.  That case never even made it to the Supreme Court for its full consideration.

Just as with African-Americans and Native Americans, the citizenship status of Chinese-Americans (and Japanese-Americans) is not now questioned.  Instead, the focus has now turned to Hispanics.  The accusations, arguments and even hatred for the Hispanics today really is no different than that previously suffered by African-Americans, Native-Americans, or even Asian-Americans.  The focal point has simply shifted to another group.

Arguably, birthright citizenship has been the single most effective tool to overcome prejudice and discrimination our country has ever embraced.  It stands for the true proposition, as decreed by our own Declaration of Independence, that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” How can we profess such simple fundamental and simple beliefs but decry birthright citizenship?

In a modern world full of social media and 24/7 news reporting it is sometimes hard to remember our past, as we are so consumed with the present.   As such, I ask that you consider the past and the vast benefits bestowed by the simple concept of birthright citizenship granted by the Fourteenth Amendment, and the countless lives that were shed to make such a simple blessing possible.  Before decrying birthright citizenship a modern-day social evil and demanding its recall, ask yourself this –as a nation, would we be where we are at today without it?  I seriously doubt it.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding A Look At Birthright Citizenship or other immigration matters , please feel free to contact Matthew L. White at  480.461.5304,  log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.