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The Attack On The 14th Amendment - Taking Bigotry To A Dangerous New Level

by Roger Algase

In their assaults against illegal immigrants (and, yes, any illegal who intends to stay in this country permanently is an "immigrant", or at the very least an "intending immigrant" under our law), far right extremists in states such as Arizona and Virginia at least have a fig leaf to cover their racism, by arguing that they are only trying to enforce the law against people who, almost by definition, are in this county illegally.

(I say "almost by definition", because the Arizona law directs the police to check the status of people who are suspected of being, not "illegal", but "unlawfully present". Any Arizona law enforcement officer who is unsure about how to tell whether someone "looks" as if he or she might be "unlawfully present" need only consult USCIS Deputy Director Donald Neufeld's 51-page memo defining unlawful presence of May 2009, and the answers to all questions about the meaning of this term will, I am quite sure, become instantly clear.)

However, there is no fig leaf in the case of the people who want to abolish one of the oldest and most central features, not only of US law, but of the English common law, namely that anyone (other than a foreign diplomat or family member of one, or a soldier of a foreign occupying army ) who is born within the territory of a nation is a citizen of that nation by birth. The movement to repeal the 14th Amendment, which adopted this doctrine as the supreme law of the land in the United States, is aimed against US citizens, not illegal immigrants. This is a radical and extremely dangerous idea, which could divide this country into one with two classes of people, white citizen Uebermenschen and brown non-citizen Untermenschen. There can be little doubt that this is the real goal of its proponents.

At least since the infamous 1857 Supreme Court decision in Dred Scot v. Sandford, which held that only white people could be US citizens, the idea of citizenship in this country has been tied up with race. The purpose of the 14th Amendment, providing that all persons born (or naturalized) in the US and subject to its jurisdiction are US citizens, was to invalidate any race- based restriction against holding US citizenship, as every schoolchild in America (hopefully) knows.

However, despite the clear language of the 14th Amendment, this was not the end of attempts to make US citizenship dependent on race. The Chinese Exclusion Act, originally passed in 1882, provided, among other things, that no person of Chinese ancestry could become naturalized as an American citizen. Therefore, since anti-Chinese racism had clearly become US public policy, the question inevitably arose whether the 14th Amendment protected the citizenship rights of Chinese persons born in the US to foreign born parents who were barred by US law from ever becoming American citizens themselves.

This question was definitively decided in the 1898 Supreme Court Case of US v. Wong Kim Ark, which held that the 14th Amendment means exactly what it says, and there there are no racial restrictions, direct or indirect. on US birthright citizenship. In that case, the plaintiff ("Wong") was born in the US to Chinese-born parents who, as mentioned above, were therefore barred from for ever becoming US citizens themselves (by a law that, incidentally, remained on the books until as recently as 1943).

Wong had lived in the US for his entire life and had no citizenship or other ties to China, except for his Chinese parentage and his having made one or two brief visits there. Upon his return from one of those visits, he was barred from entering the US on the grounds that, because of his Chinese ancestry, he was not a US citizen.

Since there was obviously no question that Wong had been born in the US, the decision turned on the question whether the fact of his Chinese parentage meant that he was not "subject to the jurisdiction" of the US. The majority, citing centuries of English common law, which it ruled that the 14th Amendment intended to follow, held that, as a general proposition, anyone born within a country's territory was subject to its jurisdiction and that Wong was therefore a US citizen by birth.

The dissent, however, argued against relying on the common law doctrine and (ironically, in view of the extreme right wing criticism of Supreme Court Justice Elena Kagan for allowing "foreign law" to be taught at Harvard Law School) argued that the continental European doctrine, which made citizenship dependent on the "allegiance" of one's parents (specifically, father), controlling, should be followed instead.This argument, I am quite sure, would delight the "birthers" who refuse to accept the reality of President Obama's US citizenship.

Why would the Supreme Court minority a century ago have been so eager to follow foreign law, instead of the English common law, which has been the foundation of America's legal system ever since this country has been in existence? There is only one reason - race.

The dissent argued that it would be unreasonable to hold that the "children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while the children of our citizens, born abroad, were not."

It also stated, quoting from the leading 1893 Supreme Court decision of Fong Yue Ting v. US, that "large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to to the customs and usages of their own country, unfamiliar with our institutions and apparently incapable of assimilating with our people, might endanger good order".

If one substitutes "Mexican" for Chinese, it would not be necessary to change a single word of the above quotations in order to describe the thinking of those who want to destroy the institution of birthright citizenship in America. It is also interesting that some of the attacks against birthright citizenship are now being directed against Chinese tourists, who perfectly legally, come to America to have US citizen babies here and then return home. Neither the pretexts nor the targets for bigotry have changed very much in the past century.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.