The 14 th Amendment Citizenship Clause: The Birthright Question

Transcription

1 The 14 th Amendment Citizenship Clause: The Birthright Question Loren W. Brown, J.D., Instructor of Law at University of Houston-Downtown, USA ABSTRACT Of the various controversies currently dominating American politics, few match the intensity of the debate over what is known as birthright citizenship, the practice of granting automatic U.S. citizenship by virtue of nothing more than the fact of birth on U.S. soil, even for those who are present in the country illegally. Those who support the policy claim that birthright citizenship is required by the provisions of Section 1 of the 14 th Amendment to the U.S. Constitution which provides: 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. Birthright citizenship relies specifically on the first portion of this clause requiring birth within the United States or its territories. But the wording does not stop there. There is that second part to the clause which requires that a person also be subject to the jurisdiction of the United States. While the first element of the law is clear and unambiguous, the second one is by no means a model of clarity. It is, in fact, quite ambiguous, and it is that ambiguity which amply fuels the controversy. It is the goal of this article to examine carefully the full citizenship clause and determine more precisely its true intent and purpose, as well as its proper boundaries. HISTORICAL BACKGROUND The purpose of the 14 th Amendment, particularly its citizenship clause, cannot be fully appreciated unless we first understand its historical underpinnings. Laws as prominent as an amendment to the U.S. Constitution do not come about in a vacuum, nor do they proceed without serious necessity. Four years after the 1787 adoption of the Constitution, the first ten amendments, known as the Bill of Rights, were adopted as a group to address important issues of liberty and property rights. The next two amendments were enacted within the following 13 years. 1 Since that time, a period of more than 200 years, there have been only fifteen additional amendments dealing with such varied concerns as election procedures, income taxation, women s suffrage, and the abolishment of slavery. It is this last category, the abolishment of slavery, that we consider in depth, for it holds the key to a proper understanding of the 14 th Amendment which was passed by Congress on June 13, 1866 and finally ratified (with considerable controversy) on July 9, North vs. South and the Matter of Slavery Race relations between whites and blacks in American have been a dominate matter of contention from the beginning of the nation. Records have been uncovered confirming the delivery of African slaves in the Virginia Colony as far back as August, There were no laws at that time prohibiting slavery as the practice was common throughout the British Empire, of which the American colonies were part. 3 The slave population in the new American colonies grew both by continued importation and live births until at least 1798 when laws were enacted halting importation, although some of these laws were later repealed and importation was again allowed for a period of time. 4 By the time of the Civil War in the early 1860 s, the total slave population in the United States had risen to nearly four million, mostly in the southern agricultural states, although slavery had existed in virtually all of the states to some degree. 5 When the United States Constitution was ratified in 1787, the word slavery was found nowhere in its provisions. Instead, the lawful institution of slavery was cloaked in more ambiguous terms. For the purposes of taxation and enumeration of state representatives to Congress, Article I, Section 2 spoke in terms of apportionment according to the whole Number of free persons, including those bound for Service for a Term of Years, and excluding Indians not taxed, 106

2 three fifths of all other persons. Persons bound for Service for a term of years was a reference to indentured servants who would later be freed when their term was completed. Slaves were simply those other persons who were to be counted as three fifths of their actual number. This three fifths enumeration was a compromise which allowed increased numbers of representatives to Congress from the southern states while at the same time requiring states with substantial slave populations to pay additional taxes on the basis of those other persons. Article I, Section 9 of the Constitution further provided that, The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, thus allowing Congress to halt the importation of slaves after twenty years following the adoption of the Constitution. Article IV, Section 2 then required that in the event any Person held to Service or Labour escaped from one state where such service or labor was legal, to another state where their service or labor would be illegal (i.e., a free state), that person would be delivered up on demand to the one to whom their service or labor may be due. Thus, a slave seeking refuge in a free state could be reclaimed and made to return to his or her master once found, even if such return was opposed by the free state. As a consequence of these Constitutional provisions, slavery was deemed to be legal in any state which saw fit to allow it, although it the word, slavery, was never explicitly used. As will be seen, slavery became a major issue of contention between the northern and southern states and played a key role in the Civil War. Of particular importance to these historical accounts is the fact that in the years before the Civil War it was commonly understood that the states were joined together voluntarily and that if and when their union became disagreeable, any state had the right simply to secede. The Declaration of Independence clearly reflected this belief when it declared that to secure the inalienable rights of Life, Liberty and the Pursuit of Happiness, Governments are instituted among Men, deriving their just powers from the consent of the governed. Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government. 6 Prior to his joining the Republican Party and his later election to the presidency, Abraham Lincoln voiced support of the states right of secession. In 1848, while then a U.S. Congressman, Lincoln challenged President Polk s actions in the war with Mexico and supported Texans right of self-determination by stating unequivocally on the floor of the House: Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right - a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own of so much of the territory as they inhabit. 7 It was through this commonly held belief and the fact that the Constitution gave primary powers of government to the states rather than the federal government, that southern states asserted their right to secede from the Union, and it was entirely contrary to his own declaration of support for these rights that Lincoln later conducted the great Civil War against the south, stating at his First Inaugural Address on March 4, 1861, It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union, -- that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances. Thus, with these words Lincoln announced a major departure from not only the predominance of state power over the federal government, but also of their long held views that they were part of the union only by virtue of their continued assent. By 1850, there were two primary political parties, the Democrats and Whigs, but neither of them was willing to offer strong opposition to slavery. As a result, those who wished to take a firm stand against the proliferation of slavery combined forces in 1854 to establish the Republican Party. The main objective of this new party was to halt the spread of slavery to any newly settled lands, and its adherents grew rapidly in number making it possible to nominate and elect Abraham Lincoln as its first president after only six years of the party s existence. 8 Out of fear that the U.S. The Journal of International Management Studies, Volume 7 Number 1, April,

3 government under Lincoln would then move directly to abolish slavery altogether, southern states promptly began seceding from the Union despite Lincoln s assurances that, I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. 9 As a result of the secession of southern states, the northern states and the Republican Party gained virtually complete control of the federal government. 10 Following the Confederate attack at Fort Sumter in April 1861, Lincoln was then able to wage war, declare the Confederate States the enemy, and then legally seize property used by the south for the conduct of the war, including southern slaves. In July, 1862, Congress passed laws allowing the confiscation of all slaves from owners supporting the southern war effort 11 and allowing those freed slaves to be used as soldiers in the war by the north, thus strengthening the northern army while weakening the south. On January 1, 1863, Lincoln issued his Emancipation Proclamation in which he ordered his army to actively liberate slaves in the Confederate states. Nearly 200,000 slaves were eventually pitted directly against their former owners and the southern forces that had kept them in bondage. 12 It must be noted here, that it was as a result of the Supreme Court s 1857 decision in Dred Scott v. Sandford, 13 that the southern slaves were legally deemed to be property and, contrary to Article IV, Section 2 of the Constitution, those slaves who then escaped to the north were simply confiscated and not returned, the same being considered spoils of war. While Lincoln s election had been the trigger of widespread dissention in the south, it had been the Dred Scott case that greatly troubled the north. In that infamous decision, the Court had held, in the first instance, that the federal courts had no jurisdiction to hear the case of a slave since the Constitution allowed the Court to hear only those controversies between Citizens of different States. As a negro, Dred Scott was not a citizen. By virtue of his race, Justice Taney went on in the Scott decision to state in dictum that all blacks were beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect. 14 With these pronouncements supporting slavery, it was feared by northerners that slavery would be allowed to expand into new western states and territories. It should also be acknowledged at this juncture that virtually all Supreme Court justices were either southerners themselves or northern Democrats who supported the causes of slavery. This imbalance in the judicial system had continued from before the adoption of the Constitution until the Civil War and was a constant source of consternation for the more abolitionminded north. 15 John R. Howard reports that while slavery was practiced primarily in the south, northerners generally regarded blacks as a despised group, made unfit by nature and history for civil society. 16 Racial discrimination against blacks was quite common in the north. He recounts that a school administrator in Connecticut was fined for allowing blacks to attend. Whites had burned an academy in New Hampshire that admitted blacks. The City of New York spent 40 times more for education of whites than black students. Iowa and Indiana refused to allow blacks permanent residence and blacks were not allowed to vote in most northern states. Some of the states required extraordinary measures by blacks who wished to open retail shops. 17 Yet, without doubt, the north was friendlier territory for blacks than could be found in the south. RECONSTRUCTION The country was devastated by the ravages of civil war, particularly in the south. While death tolls in the north are estimated at a staggering 10 percent of males 25 to 45 years old, in the south approximately 30% of men 18 to 40 were killed. 18 Entire southern towns were pillaged, plundered and then burned by the invading Union army, and according to one account, the City of Vicksburg, Mississippi was so totally striped of crops and houses that residents were forced to live in caves eating rats, dogs and mules. 19 By the time the war was over, sentiments were so strong on both sides that reparations seemed impossible. When General Lee finally surrendered his army on April 9, 1864, only two things had been settled by the Civil War. First, the states had no right to secede from the Union; the federal government had become more powerful than ever before and the states were a permanent possession of the Union. Second, slaves were to be set free. The first of three so-called Reconstruction Amendments, the 13 th Amendment, adopted on December 6, 1865, formally abolished 108

4 slavery, stating at Section 1, Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction. After more than 250 years, black slaves were finally given their liberty. But the freedom guaranteed by the 13 th Amendment failed to settle important questions about the future role of blacks in America. The Dred Scott case, handed down only 8 years before, had ruled that negroes could not be citizens of the United States, and that case was still valid law in 1865, despite the provisions of the 13 th Amendment. The slaves were free, but free to do what? What rights did their freedom bring? Who had authority to determine those rights? Was it the individual states, or the federal government? In the aftermath of the Civil War, and even following the adoption of the 13 th Amendment, various states began enacting laws to define the role of blacks in white America. Because the Dred Scott case had ruled that blacks were not citizens, some states denied negroes the right to vote altogether, while others set specific voter eligibility requirements. 20 Property rights were questioned and various states began passing laws known as Black Codes aimed at limiting rights of blacks in economic, civic and social arenas, with the goal of getting things back as nearly to slavery as possible, in the view of one commentator. 21 Laws were passed restricting blacks from certain occupations or from leaving one employer to accept a job with another. In Florida, if a black person violated an employment agreement he could be punished by whipping, pillory, or sold at auction for not more than a year s labor. 22 It was in this extraordinary climate of racial tension following the Civil War that the federal government under President Andrew Johnson was forced to act, and it was in this climate that extraordinary steps were finally taken to resolve the very complicated issues surrounding the newly freed slaves. One such issue that demanded resolution was whether the federal government had a right to intervene in the affairs of the states which had enacted the Black Codes. The answer to this question was quick in coming. The First Civil Rights Enactments Overriding President Johnson s veto on March 27, 1866 on grounds it was anti-white, the Civil Rights Act of 1866 was enacted on April 6, 1866 by both Republican-dominated houses of Congress. The Act proscribed the denial of certain rights by reason of race, including contract rights, property ownership rights, and the right to be secure from punishments that were race-based. 23 The Act was immediately challenged in the matter of a black Kentucky woman who had been burglarized by white men. Under Kentucky law, she was not allowed to testify in court against her white assailants. The matter was removed to federal court under the new Civil Rights Act and after her testimony was there received, the white men were convicted. On appeal to the Supreme Court the judgments were affirmed. 24 The Act had accomplished its purpose, at least temporarily. To make certain their accomplishments in the Civil Rights Act were not lost to future challenges, however, the Republican majority determined to push forward an Amendment aimed at settling the black issues once and for all. A permanent Constitutional guarantee of equality for blacks was the goal. After two different proposals of an amendment were introduced and considered, a final version was passed in June, 1866 which was tailored after the 1866 Act and modified the Constitution concerning citizenship in the U.S., transferring jurisdiction over citizenship from the states to the federal government (until this time in history, citizenship was determined at the state level). 25 It was then presented to the states for ratification. It included five sections, including the first containing the following clause: 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. Thus, determination of citizenship became a two part test: (1) the person must have been born or naturalized in the United States, and (2) the person must be subject to the jurisdiction of the United States. The first part of the test is simple enough and it is the part that has been stressed by those who advocate free and unobstructed access to U.S. citizenship by birthright. But there is a second part that must also be satisfied and it is this second requirement which creates the greatest controversy. The phrase, and subject to the jurisdiction thereof, is, in fact, quite ambiguous. Even though the 14 th Amendment provides for citizenship by either naturalization or birth to those subject to the jurisdiction of the United States, neither the original Constitution itself, nor any of its subsequent amendments defines how or when a person becomes subject to U.S. jurisdiction. For this reason we must necessarily The Journal of International Management Studies, Volume 7 Number 1, April,

5 consider the original intent of the amendment s drafters. If the intention had been simply to require a person be born on U.S. soil to gain citizenship, the writers would certainly have stopped with the first of the two stated requirements. But they did not stop there and we cannot ignore the second requirement any more than we could ignore the first. The best evidence of the true intention of Congress is contained in the records of debate which preceded the 14 th Amendment. Prior to the passage of the Civil Rights Act of 1866, the sponsor, Sen. Lyman Trumbull (R-Ill.), declared it was his goal to make citizens of everybody born in the United States who owe allegiance to the United States. He noted, however, that the use of the word allegiance created an ambiguity in that even persons temporarily in this country owed a measure of allegiance during their residence, but had no right to be made citizens. Temporary residents in the United States owe allegiance in the sense that they are bound to follow U.S. laws, for example. It was for that reason the 1866 Act adopted the phrase, not subject to any foreign power. This wording was changed in the 14 th Amendment to read, subject to the jurisdiction thereof. It appears, therefore, that the intention of both the 1866 Act and the 14 th Amendment was to guarantee citizenship to black Americans, contrary to the Dred Scott decision, while denying citizenship to those owing only transitory allegiance by virtue of their temporary presence in the country. In explanation of the true intention of the 14 th Amendment s citizenship clause, Senator Jacob Howard is quoted as stating in 1866, 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. 26 It must also be noted that the 1866 Act specifically excluded from citizenship indians not taxed. During debates over the wording of the 14 th Amendment, Sen. Trumbell related the suggested wording, subject to the jurisdiction, to the American Indians, explaining that because Indians may owe allegiance to their tribe, rather than complete allegiance to the United States, they could not be considered citizens. He defined the phrase subject to the jurisdiction of the United States as meaning, Not owing allegiance to anybody else, including their indian tribes. 27 In view of this historical background, it would follow in logic that under the terms of the 14 th Amendment illegal immigrants would not stand in any better position than indians not taxed. American Indians had inhabited the land long before the white settlors and had subsequently by law been granted separate land for their own possession by the U.S. government. By contrast, children of illegal immigrants have no such historical entitlement. Although anyone within its borders, even temporarily, is bound to adhere to American federal and state laws during their presence in the U.S., a form of partial allegiance to this country, illegal immigrants do not owe allegiance to the United States in the manner suggested by Sen. Trumbull. Rather, it may be argued convincingly that they owe allegiance to their homeland. For that reason, the second part of the test established by the 14 th Amendment is not met by illegal immigrants, even if they should satisfy the first requirement of physical birth on U.S. soil, for there is no basis in fact or logic on which to conclude that a newborn child has elected to give allegiance to any particular country, regardless of where they happen to be born. The only basis we have on which to impute allegiance of a child is the citizenship status of the parents, that is, the nation to which the parents owe allegiance. It was on this basis that Sen. Reverdy Johnson (D-Md.) stated that the 14 th Amendment requires, in additional to birth or naturalization, that a child be born of parents who at the time were subject to the authority of the United States. 28 While illegal aliens may be obligated to follow the laws of the United States by virtue of their presence here (a presence obtained in the first place by violating U.S. laws), it cannot be said that children born to them have the same standing as those born to native-born or naturalized citizens, either because their parents do not owe full allegiance to the United States as contemplated by the14 th Amendment, or because their parents are in fact acting in violation of the laws of the United States at the time of their child s birth by virtue of their unlawful entry into the United States. Their illegal presence is sufficient proof to establish their absence of allegiance, for their unlawful entry was by itself a very serious violation of the laws which complete allegiance would require them to follow. 110

6 Subsequent Supreme Court Cases In what become known as the Slaughter-House Cases, the Supreme Court offered one definition of the phrase, and subject to the jurisdiction, as contained in the 14 th Amendment, saying: The phrase, subject to the jurisdiction, was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. 29 If, by this definition, children born in this country to foreign ministers, consuls and citizens who are lawfully present in the United States are not subject to the jurisdiction thereof, and are excluded from birthright citizenship, it would seem again to follow in logic that children born in the United States to persons in the country illegally would also be excluded. However, the Slaughter-House Cases did not deal specifically with the issue of birthright citizenship and its definition does not, as a result, amount to law governing the issue. In Elk v. Wilkins, a 1884 case dealing with the citizenship of an American Indian, the Supreme Court stated plainly that, no one can become a citizen of a nation without its consent, 30 a statement acknowledging sovereignty of the nation. The court apparently agreed with Sen. Trumbull that allegiance was the key consideration to the interpretation of the phrase subject to the jurisdiction, when it then stated that a person must not be merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. 31 As in the Slaughter-House Cases, the Court in Elk found that although Indians may have been born within the United States, they were not subject to the jurisdiction thereof any more than were children born in the U.S. of ambassadors or other foreign ministers. Again, this case would support the argument that illegal immigrants are not subject to the jurisdiction of the United States and their U.S. born children should not be granted automatic citizen simply on the basis of their geographical location at the time of birth. No Supreme Court case has dealt squarely with the birthright citizenship of illegal immigrants. However, a decision was rendered in the case of United States v. Wong Kim Ark 32 which decided that a child born within U.S. boundaries to legally immigrated Chinese parents who were not themselves employed in a diplomatic capacity by their homeland, was a citizen by virtue of the 14 th Amendment citizenship clause. It appears the Court chose to interpret the clause very broadly when it stated that the 14 th Amendment appeared to exclude, by the fewest and fittest words... two classes of cases children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State. 33 It would seem clear enough that children born to illegal immigrants are not of the latter variety, i.e., children of diplomatic representative of a foreign State, but they do bear resemblance to children born of alien enemies in hostile occupation by virtue of their alien status and their illegal occupation within the U.S. borders. Wong Kim Ark tends more to confuse the birthright issues than resolve them. In any event, the status of children born to illegal immigrants remains an open question, one not resolved either by the wording of the 14 th Amendment itself or by Supreme Court decision. Given the historical background of the 14 th Amendment, together with the records of debate prior to its passage as well as the cases which followed its ratification, it seems clear enough that the current policy favoring birthright citizenship to those who would force their way illegally into the United States is the unfortunate result of misdirection and misinterpretation. It is time that the U.S. Congress addresses the issue squarely. REFERENCES 1 The 11th Amendment was enacted February 7, 1795 dealing with issues of sovereign immunity of the states and the 12th Amendment revising election procedure for the office of president was enacted June 15, Rein, Lisa (September 3, 2006). Mystery of Va. s First Slaves Is Unlocked 400 Years Later ( 3 Slavery in Britain continued until the enactment of the Slavery Abolition Act of 1833 (Section LXIV) which abolished slavery in most of the British Empire. 4 Morrison and Commager: Growth of the American Republic, pp Slave Populations in the Southern States c U.S. Declaration of Independence, Paragraph 2 (1776). The Journal of International Management Studies, Volume 7 Number 1, April,

7 7 Lincoln on the floor of Congress, 13 January 1848, Congressional Globe, Appendix, 1st Session 30th Congress, page 94 8 Pendergast, Pendergast and Sousanis: Constitutional Amendments From Freedom of Speech to Flag Burning, p Id. at p Id. 11 Id. at Id. at U.S Id. at Pendergast, Pendergast and Sousanis: Constitutional Amendments From Freedom of Speech to Flag Burning, pp Howard, J. : The Shifting Wind, The Supreme Court and Civil Rights from Reconstruction to Brown, p Id. at pp John Huddleston (2002): Killing Ground: photographs of the Civil War and the Changing American Landscape 19 Thomas J. DiLorenzo (2003): The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, p Three Rivers Press, New York, New York 20 Id. at p Id. at p. 49, quoting commentator, Benjamin Flanders (fall, 1865) 22 Id. at Id. at Id. at pp , citing U.S. v. Rhodes, (Cas. No. 16, 151), Fed. Case. P. 785 (1866) 25 Id. at pp Cong. Globe, 39th Cong., 1st Sess (1866). at Id. at Id. at U.S. 36 at U.S. 94 at Id. at U.S Id. at