Friday, October 06, 2006

Born in the U.S.A.

Immigrant children

Born in the U.S.A.? The children depicted above weren't. This Brown Brothers photo of immigrant children at Ellis Island, circa 1908, does more than document the history of the U.S. Public Health Service. It illustrates, in poignant form, one of the simplest wishes felt throughout the world's huddled masses yearning to breathe free: that one's children and grandchildren might be born on American soil and thereby might earn by right what their forebears secured solely by sweat — the privilege of saying, "I am a citizen of the United States of America."

This is the promise rendered by 28 of the most important words in American law:
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.
(Pues, en español también: "Todas las personas nacidas o naturalizadas en los Estados Unidos y sometidas a su jurisdicción son ciudadanos de los Estados Unidos y de los Estados en que residen.")

Only slightly less succinct are the "irresistibl[e] . . . conclusions" of the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the case that recognized birthright citizenship in American constitutional law:
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.
Union dead at GettysburgId. at 693. Leave aside for now the strange treatment of native Americans in Elk v. Wilkins, 112 U.S. 94 (1884), which accounted for the Wong Kim Ark Court's reference to "children of members of . . . Indian tribes." Wong Kim Ark's conclusion commands our attention: "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." For this and more the members of Grand Army of the Republic willingly laid down their lives, and I — born far beyond the borders of the United States — am and shall remain eternally grateful.

All of this is a long prologue to a bit of overt politicking. As the 2006 elections approach, many American voters undoubtedly are still weighing their options. I'd like to offer a little advice that, with any luck, will be helpful in addition to being unsolicited. Any candidate for Congress who supports the proposed Enforcement First Immigration Reform Act of 2005 (EFIRA), H.R. 3938, deserves to lose. All other things being equal, vote for his or her opponent.

EFIRA is filled with odious provisions, but section 701, purporting to define "Citizenship at Birth for Children of Non-Citizen, Non-Permanent Resident Aliens," is singularly offensive. Section 701 would amend the Immigration and Naturalization Act by adding this new provision:
[A] person born in the United States shall be considered as "subject to the jurisdiction of the United States" if —
(1) the child was born in wedlock in the United States to a parent either of whom is (A) a citizen or national of the United States, or (B) an alien who is lawfully admitted for permanent residence and maintains his or her residence . . . in the United States; or

(2) the child was born out of wedlock in the United States to a mother who is (A) a citizen or national of the United States, or (B) an alien who is lawfully admitted for permanent residence and maintains her residence in the United States.
Wong Kim ArkThis is nothing short of a legislative attempt to override (or at least circumvent) Wong Kim Ark. It is an insult to Wong Kim Ark and to the millions of Americans — born in the U.S.A. and elsewhere — touched by his legal legacy. For this affront to core American values, Congressman J.D. Hayworth (R-Ariz. 5), sponsor of H.R. 3938, deserves to lose his reelection bid. So do his 33 cosponsors.

Children do not ask to be born. They have no control over the circumstances of their birth. They can no more choose their birthplace than they can choose their parents.

And what of the mothers of these children, putatively driven by a perfidious combination of greed and sloth to enter the United States illegally in order to give birth to "anchor babies" and thereby to spark "chain migration"? I shall not speculate on the malice that motivates demagogues to spout such venom, or on the desperation that drives voters to imbibe their poison. But I know this much: No woman is evil who seeks to bring her child into a world of promise and not of squalor.


Blogger Dan Kowalski said...

Now linked at

10/06/2006 12:40 PM  
Anonymous Anonymous said...


For what it's worth, this was the most moving and eloquent post I've read at Jurisdynamics and I hope it garners the wide attention it deserves. Relatedly, today's 'research canons' topic at PrawfsBlawg is 'immigration and naturalization law,' as both Matt and I highlight Joseph Carens' argument....

And I absolutely agree that 'Any candidate for Congress who supports the proposed Enforcement First Immigration Reform Act of 2005 (EFIRA), H.R. 3938, deserves to lose. All other things being equal, vote for his or her opponent.' Unfortunately, pervasive but unarticulate and, in the end, irrational fears about job security, as well as related class and status maintenance anxiety fuel the darker motivations of the American voter and too many legislators forfeit this (yet another) opportunity to exercise proper political leadership and instead pander to popular yet misplaced fears and prejudice.

[Incidentally, Tibetan Buddhists, given their belief in karma and the mechanisms of rebirth, do believe that, in some sense, babies have 'chosen' their birth mother!--of course, even so, it's irrelevant to the larger argument]

10/06/2006 7:51 PM  
Anonymous Anonymous said...

Pardon me, I meant to say 'inarticulate.'

10/06/2006 7:53 PM  
Anonymous Anonymous said...

I agree with your legal analysis and applaud your passion. For what it's worth, I recently published an article on this very topic. See "Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (2006). I'm happy to e-mail a copy to anyone interested; my e-mail address is

10/07/2006 9:46 AM  
Anonymous Anonymous said...

Whats so curious is that I see a couple of "immigrants" supporting this appalling bill, along with the English/UlsterScot "settler stock" surnames - mostly southern Republicans - I see on the list. Tancredo and Gutknecht. Tancredo's grandfather came to America in 1900 from Italy, and Gutknecht is obviously a German name. One would think these people would at least keep their heads low in such a sensitive subject thats so close to their own backgrounds.

How charming. I strongly suspect Jindal will jump on to this bandwagon as well. Compared to this disgrace, fencing off the border suddenly seems like a more humane thing to do.

[And yes Patrick, most of Asia, not just Tibet, considers rebirth an accepted, "normal" fact of life ;)]

10/07/2006 10:16 AM  
Anonymous Anonymous said...


I know: I was just wanting to reference the bit about 'choosing one's birth mother.' I teach a course in comparative world religions, have studied Sanskrit, the Indic darsanas (diacritics unavailable), and Asian religions in general, since in my teens (I'm close to 50 yrs.). And it just so happens that my best friend is from India, the wife of the late Raghavan Iyer, author of a nonpareil study of Gandhi's moral and political thought, and mother of the travel writer, novelist and Time essayist, Pico Iyer (a good friend too).

10/07/2006 5:45 PM  
Anonymous Anonymous said...

In his most recent blog posting, P.A, Madison counters Chen's romantic argument that the 14th Amendment was intended to reaffirm the right to birthright citizenship. I offer it to you for your consideration.

Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law
There is a misconception floating around that suggests the ruling in U.S. v. Wong Kim Ark is the definite guiding rule of interpretation over the fourteenth amendment’s citizenship clause. Worst, some even go as far to suggest Wong Kim Ark is settled law. Nothing could be further from the truth.

Reading the majorities opinion in Kim Ark, one can’t help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous established court decisions that substantially covered the same ground regarding the meaning and application of the words found in the fourteenth amendments citizenship clause, leaves one to wonder what is going on here?

Deeper into the decision, justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found in the Constitution, Jacob M. Howard and Lyman Trumbull.

It is clear the Wong Kim Ark majority recognized the fact that the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: "Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words."

Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: "A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent."

The Wong Kim Ark court was refusing to look at both the original intent and legislative intent because they knew it would be fatal to their pre-determined intent of reversing what Congress had inserted into the US Constitution. So they set out to avoid Howard and Trumbull like the plague.

Reviewing what both Sen. Howard, who was responsible for the drafting of the citizenship clause, and Sen. Trumbull, clearly declared what was the intended effect of the language of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history and previous court rulings on the effect of this language.

The first major hurdle Howard presents to the Wong Kim Ark majority is that he specifically declared the clause to be "virtue of natural law and national law." Perhaps this is why Gray wasted much of his commentary along common law themes. National law posed too large of a hurdle to dismiss outright - as national law only recognized citizenship by birth to those who were not subject to some other foreign power.

Howard then goes on to introduce the clause as to specifically excluding all "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." Only class of persons the clause can operate on is American citizens, regardless of their race - which is exactly what was intended.

To make matters even worst for the court, Howard goes on to say in May of 1868 that the "Constitution as now amended, forever withholds the right of citizenship in the case of accidental birth of a child belonging to foreign parents within the limits of the country."

Lyman Trumbull goes on to present an insurmountable barrier of his own by declaring: "The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."

Sen. Howard follows up by stating 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." Here Sen. Howard makes it impossible for "subject to the jurisdiction" to operate on anyone other than American citizens.

John A. Bingham, chief architect of the 14th amendments first section, considered the proposed national law on citizenship as "simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."

As mentioned earlier, the Supreme Court had already tackled the meaning of the 14th amendment's citizenship clause prior to Wong Kim Ark, and unlike the Kim Ark court, did consider the intent and meaning of the words by those who debated the language of the clause. In the Slaughterhouse cases the court noted that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.

The court in Elk v. Wilkins (1884) correctly determined that "subject to the jurisdiction" of the United States required "not 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." Both Jacob Howard and Lyman Trumbull affirm this.

When all is said and done, the majority in Wong Kim Ark reveals their true nonsensical position: "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."

Well now, there was no question at issue involving citizenship being withheld on account of the 14th amendment to American citizens, and had the court bothered to consider the history of the amendment, they would have easily discovered it is all about granting citizenship to American citizens regardless of their race. The idea of withholding citizenship upon birth to subjects of other countries within the limits of this country was, well, the desired result of declaring who is, and who isn't, a citizen of the United States.

The most significant truth to come out of the entire Wong Kim Ark ruling was from chief justice Fuller himself, when he said, “the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power.’” He was absolutely correct.

Only reason the language of the fourteenth differs from the civil rights bill of 1866, which used the language "and not subject to any foreign power, excluding Indians not taxed" to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.

Taken into account both the legislative and language history behind the citizenship clause – and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling as worthless as a three-dollar bill. Slaughterhouse and Elk still stand as the only controlling case law that is fully supported by the history and language behind the citizenship clause as found in the first section of the 14th amendment.

12/11/2006 12:11 PM  
Anonymous Anonymous said...

Whoever this "P.A. Madison" is, sucessfully put the Wong Kim Ark ruling out to pasture, while also exposing it for what it really is: crap.

12/21/2006 3:35 AM  
Anonymous Anonymous said...

I and some of my fellow law students are disappointed. We've been watching this P.A. Madison post since it showed up in Dr. Chen's blog, and I had hoped that he, or one of his colleagues would publish a countering argument.

12/21/2006 12:45 PM  
Anonymous Anonymous said...

James C. Ho's article, referenced above and first published in The Green Bag, Second Series • Summer 2006 Volume 9 • Number 4, and now posted at,0212-ho.pdf
is one counter to P.A. Madison. Another is Gary Endelman's "E Pluribus Unum: Well Maybe Not Everybody; Towards A Re-Examination Of Birthright Citizenship," first published in 11 Bender's Immigr. Bull. 307 (April 1, 2006) and now posted at,0502-endelman.shtm
is another.

2/09/2007 5:24 PM  

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