Birthright Citizenship

Who gets to be a citizen of the United States? This is the question before the US Supreme Court in Trump v. Barbara.

On the first day of his second term as President of the United States, Donald Trump signed an Executive Order titled: Protecting the Meaning and Value of American Citizenship. Through this Order, the Trump Regime sought to eliminate the birthright citizenship law explicitly set forth in the 14^th Amendment to the Constitution and in the Supreme Court's ruling in United States v. Wong Kim Ark.

This Executive Order, in my view and that of many others, is one of numerous ways Trump and his minions are telling Latinos that we aren’t welcome in this country. Through this Executive Order, Trump is inviting the Supreme Court to undo a century of existing law in order to deny citizenship to the children of undocumented immigrants. Multiple cases challenging the Executive Order were filed immediately, and every court that considered the issue found that it likely violated the Constitution and prevented the change from taking effect. This question was quickly taken up by the United States Supreme Court.

This newsletter provides some historical background as we await the Supreme Court's decision. 

 How Citizenship is Acquired

Throughout the world, people acquire citizenship based on two legal principles: jus soli and jus sanguinis. Jus is the Latin word for law or right and is the root for the word justice.  Soli means soil, as in the land where you are born; just think location, location, location, and sanguinis means blood or your bloodline. In the United States, people become citizens the moment they are born.

Donald Trump has repeatedly claimed (falsely) that “the US is the only country in the world stupid enough” to have birthright citizenship. In fact, three dozen countries, including the US, grant automatic citizenship to people born on their soil, as do Canada, Mexico, and most of South America.  (As set forth in the chart)

The United States follows the jus soli principle, which originates in English Common Law. In England, whoever was born within the land controlled by the King was a subject of the King. When the thirteen colonies declared their independence from England and created the United States, they adopted English Common Law, which meant our nation followed the jus soli principle. This was the law in Great Britain until 1981, when political and social pressure, including anti-immigrant sentiment, led the British Parliament to adopt new immigration laws. The new law decoupled the right to citizenship in the United Kingdom from being born there (jus soli) to requiring that a newly born child have a parent with British citizenship (jus sanguini). British law joined the ranks of its neighbors, as you can see in the chart. 

The Dred Scott Case

The question of who can be a United States citizen was first addressed by the US Supreme Court in the mid-1800. The issue was whether black people could be citizens of the United States. Dred Scott, who lived in Virginia, was purchased by an Army surgeon, Dr. Emerson, who took Dred Scott with him while he was posted in two federal territories (that later became states) that prohibited slavery. At some point, Dr. Emerson’s family relocated to Missouri, and Dred Scott’s family also moved with the Emersons. Slavery was lawful in Missouri.

Dred Scott requested to buy freedom for himself and his family after Dr. Emerson's death, but his widow declined to sell him his freedom. Dred Scott sued on the grounds that having lived as a free man in territory that did not allow slavery, he was now emancipated. This principle had been accepted by various courts, and a lower court agreed with him, but the case was appealed to the Supreme Court. 

On March 6, 1857, Chief Justice Roger B. Taney delivered the majority opinion of the U.S. Supreme Court. Seven of the nine justices agreed that Dred Scott should remain a slave, but the Chief Justice did not stop there. He also ruled that as a slave, Dred Scott was not a citizen of the United States and therefore had no right to bring suit in the federal courts on any matter. In addition, he declared that Scott had never been free, due to the fact that slaves were personal property; thus, the Missouri Compromise of 1820 was unconstitutional, and the federal government had no right to prohibit slavery in the new territories. This decision is viewed by historians as a contributing factor to the Civil War and is considered one of the most shameful Supreme Court decisions in our country's history.

Sounds a lot like what we’re living through as this Supreme Court rolls out decisions heavily favoring the Christian Nationalist agenda of the Trump Administration.

The 14^th Amendment After the Civil War, the United States Constitution was amended to protect the civil rights of formerly enslaved Black people. The Reconstruction Amendments -- the 13th, 14th, and 15th Amendments to the U.S. Constitution -- were ratified between 1865 and 1870 and were designed to dismantle slavery and establish legal equality for formerly enslaved people, guaranteeing due process and equal protection, and granting voting rights. This Amendment undid the Supreme Court’s Dred Scott’s decision.

A decade plus after these Reconstruction Amendments were adopted, economic anxiety and anti-Chinese racism had grown to a fever pitch on the West Coast, with various states passing many anti-Chinese laws in hopes of forcing Chinese who lived here to leave and to keep additional people from coming to this country. The United States Congress enacted the first federal immigration law to exclude people based on their race and nationality. In 1882, the Chinese Exclusion Act banned Chinese laborers from entering the US and explicitly forbade state and federal courts from granting United States citizenship to Chinese residents already living here. 

Wong Kim Ark was born in San Francisco a few years before the Chinese Exclusion Acts were passed. As a young man, he traveled twice to China, and on his second return, immigration officials would not allow him to disembark at the port in San Francisco. Since the Chinese Exclusion Act prohibited people of Chinese ancestry from becoming United States citizens, officials assumed that Wong Kim Ark could not possibly be a US citizen as he claimed.

Hold up, said Wong Kim Ark. As I was born in San Francisco, I am a citizen of this country, as set forth in the 14^th Amendment. 

And doing the most American of things, Wong got a lawyer and sued the government. The lower court agreed that the 14^th Amendment clearly granted Wong Kim Ark citizenship.

The case was appealed to the US Supreme Court, and in 1898, a 6-2 decision held that the 14^th Amendment applied to ALL children born in the United States, and Wong Kim Ark was a U.S. citizen and had to be allowed back into his country.

From the moment Donald Trump threw his hat into the political ring, he capitalized on anti-immigrant sentiment, especially against Mexicans and other Latinos. He raised the idea of denying citizenship to children of undocumented parents during his first term, but faced severe pushback from legal scholars and prominent Republicans who told him such an order would be unconstitutional. Buoyed by the great powers bestowed upon him by this Supreme Court, Trump began his second term by issuing Executive Order 14160, eliminating this constitutional right. He issued this on the first day in office.

Legal scholars and court watchers believe the Supreme Court will agree with the lower courts and rule the Executive Order unconstitutional. This court has issued many decisions expanding the powers of the Executive Branch (really, Donald Trump's powers). It ruled very narrowly when Democratic Presidents Obama and Biden issued Executive Orders. 

I am hopeful that the Supreme Court agrees that Trump overplayed his hand in seeking to eliminate birthright citizenship and that jus soli continues to be the law in the United States. And we will soon know the answer.