Citizenship before Trump… or Lincoln

August 30, 2015
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Eight-year-old Marlon Delgado is wrapped in a U.S. flag as he participates in the National Day of Action for Immigrant Justice. Many Republican presidential candidates argue against birthright citizenship. Photo by Win McNamee/Getty Images)

Eight-year-old Marlon Delgado is wrapped in a U.S. flag as he participates in the National Day of Action for Immigrant Justice. Many Republican presidential candidates argue against birthright citizenship. (Photo by Win McNamee/Getty Images)

Several Republican presidential candidates have recently drawn public attention by criticizing the Fourteenth Amendment.  In particular, the Citizenship Clause is under fire.  In a wave of anti-immigration rhetoric, Donald Trump, Lindsey Graham, Chris Christie, Bobby Jindal, and Scott Walker have each voiced support for a new “re-interpretation” of how children become U.S. citizens.  The Fourteenth Amendment states:

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.  

In other words, children born on American soil are considered U.S. citizens, regardless of the nationality of their parents.  As part of the three Reconstruction Amendments, freed slaves and their children were the immediate beneficiaries, yet, the wording remains unambiguous.  While the debate over birthright citizenship will certainly continue, at least until Election Day 2016, it is interesting to consider how our country handled naturalization prior this Amendment’s adoption in 1868.

Naturalization is the process of a person becoming an American citizen.  The first law on this subject was the Naturalization Act of 1790.  It allowed individuals to apply for citizenship after two years of residence if they were “free white persons.” As such, it excluded slaves and Asians.  Women, too, were limited, as the most important reason to become a citizen was to obtain the right to vote.  However, women were not able to vote until the Nineteenth Amendment passed in 1920.  Moreover, naturalization of children followed the citizenship of the father.  The required duration of residence before applying for citizenship was changed several times, but it settled at five years by 1802 and remained so for a century. A strong motivator for passage of the Fourteenth Amendment occurred in 1857, when the Supreme Court ruled 7-2 in Dred Scott v Sandford that a slave living in free territories could not sue for his freedom because he was not a citizen.

The Fourteenth Amendment nullified the Dred Scott decision.  Yet, as Cornell University Law School Professor Michael Dorf commented last week, the wording of the amendment is broad and refers to “all persons.” Those who argue for a narrowing of its interpretation must also disregard other Supreme Court precedent, including United States v Wong Kim Ark (1898) when the Court found that a child born on U.S. soil to parents of Chinese descent was indeed a U.S. citizen.

Rather than asking Mr. Trump and others how they would interpret the Fourteenth Amendment, the media would serve the public better by asking the candidates why they think America should shun these children.  Professor Dorf stresses the “virtues of birthright citizenship,” which include fostering a “sense of duty” and promoting “American values.”  We hear little of these inspirational messages, perhaps because some are mostly concerned with the height of a wall.

What do you think?

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