Inconvenient News,
       by smintheus

Tuesday, January 04, 2011

  Birthright citizenship ninnies

Over and over I'm amazed at the people who pass themselves off as experts on the "controversy" of birthright citizenship in the US. Nearly all of them exhibit a profound and perverse ignorance of both history and law. Typically they present the matter (falsely) as a question of whether the Fourteenth Amendment went too far in granting citizenship to all children born here - including (shudder) many sprang from the wrong sort of parents.

Here's Marc Lacey of the NY Times repeating this idiocy once again:

The next big immigration battle looming on the horizon centers on illegal immigrants’ offspring, who are granted automatic citizenship like all other babies born on American soil. Arguing for an end to the policy, which is rooted in the 14th Amendment of the Constitution, immigration hard-liners describe a wave of migrants like Ms. Vasquez stepping across the border in the advanced stages of pregnancy to have what are dismissively called “anchor babies.”

It's about damn time that somebody set these clowns straight. Bigotry is all fine and good, I suppose, but how are we supposed to have a properly divisive public debate on this non-issue when the facts are all turned upside down?

Birthright citizenship is NOT "rooted in the 14th Amendment of the Constitution". It dates back to the Declaration of Independence, even before the (current) Constitution was adopted. English Common Law had traditionally made people born in English lands (including these colonies) subjects of the King.

As Supreme Court Justice Noah Swayne said in 1866 (United States v. Rhodes):

"All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country…since as before the Revolution."

So it was simply assumed in 1776 that all people born in the states would become citizens; there was no need for an explicit assertion of that Common Law principle in the text of the Constitution (which does however refer to 'natural-born citizen[s]', thus demonstrating the principle was recognized).

All the 14th Amendment did, therefore, was to extend the normal expectation of birthright citizenship to the former slaves. For goodness sakes, how else could residents of America become citizens before 1865 if not for the principle that birth here made you a citizen?

I'm not going to discuss the more complicated question of how and when aboriginal Americans became US citizens, since that is not relevant to the faux-controversy du jour.

I will however mention this: Not only was this "issue" never seriously contested until recently, we can observe the principle of birthright citizenship being confirmed in federal court in the early 19th century...long before the 14th Amendment. For example, in 1830 (Inglis v. Trustees of Sailor's Snug Harbor) a court case involved the question of citizenship for children born here during the Revolutionary War. This is a nice case for our purposes. The Supreme Court found that children born in New York in 1776 in the months before the British occupation possessed automatic American citizenship, whereas children born afterwards while the British army actually held the city became English subjects at birth.

In short, birthright citizenship is rooted in English Common Law, not in the 14th Amendment. Those who pretend that they're addressing a "controversy" about how the 14th Amendment was intended to apply are simply talking nonsense.

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  • For an overview of the history of birthright citizenship in the US, see this 2005 report from the Congressional Research Service.

    Notice in particular the discussion at pages 4-5 of a legal case from 1844, Lynch v. Clarke. The court found that the child of an alien born in the US was necessarily a citizen of the US -- even though the child returned to Ireland with the parents and then died there without ever having expressed any intention of being counted a US citizen. That case by itself ought to end any dispute about whether the Common Law principle of birthright citizenship applies to children of illegal aliens. But sadly, it's never mentioned by journalists or the controversialists they give credibility to.

    By Blogger : smintheus ::, at 7:26 PM  

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