Forgive me for the all-caps word in the title of this post; I am not one who likes to make his points by emphasis instead of reason. But, the pleasant folks over at The Bull Elephant like it that way, so I’m following suit as this is a response to Steve Albertson’s post there entitled, “Birthright citizenship is NOT guaranteed by the Constitution.”
For the TLDRs out there: He’s wrong, it is.
For those who had the patience to read his post, and want more details, maybe you’ll read this post too. Albertson cites three sources of law in his discussion: the Fourteenth Amendment; a Supreme Court decision known as “The Slaughter-House Cases;” and the Supreme Court decision in “U.S v. Wong Kim Ark.” In short, here’s Albertson’s take: 14A grants citizenship to people born in the United States, but only upon the qualification that those people be subject to the jurisdiction of the United States; The Slaughter-House Cases opinion includes the statement, “…‘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.”; and that the Wong decision held that birth in the United States granted citizenship, but the decision was about parents legally within the United States, so the grant of citizenship to children of parents illegally in the United States was not addressed.
Well he’s wrong, for a few complicated reasons, and one really simple one. Let’s do complicated first. If Albertson were right, that “Slaughter-House” excluded “citizens or subjects of foreign States born within the United States” from 14A’s citizenship by birth, the question of whether or not theparents of the newborn were legally or illegally within the United States would make no difference. Anyone a citizen or subject of a foreign state would simply not be a United States citizen, end of story. So how could Wong, who was born in California to two Chinese parents who were not citizens of the United States be a citizen, given that “Slaughter-House” appears unequivocally to have declared him ineligible? Albertson seems to have read the decision in Wong, so he knows. Here’s what he knew, but left out of his post at TBE:
Mr. Justice Miller, indeed, while discussing [in the Slaughter-House decision] the causes which led to the adoption of the fourteenth amendment, made this remark: ‘The 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.’ 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together; whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as intrusted with authority to represent their sovereign in his intercourse with foreign states, or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent, Comm. 44; Story, Confl. Laws, § 48; Wheat. Int. Law (8th Ed.) § 249; The Anne (1818) 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838) Taney, 1, 10, Fed. Cas. No. 5,465; In re Baiz (1890) 135 U. S. 403, 424, 10 Sup. Ct. 854.
In weighing a remark uttered under such circumstances, it is well to bear in mind the often-quoted words of Chief Justice Marshall: ‘It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.’
In other words, what “Slaughter-House” said about foreign nationals not being granted citizenship by birth was what lawyers call “dictum,” and dictum is not law. In Wong, the court clearly and directly looked at the statement Albertson relies upon, and ruled with certainty that it was incorrect. To the extent that it was ever authoritative, Wong reversed it. Moreover, Albertson’s claim that Wong held that the children of legal residents were citizens (and thus leaves open the question of children of illegal residents) is simply incorrect. The residency status of Wong’s parents is never addressed. Here, at (alas) full-length, is what the Supreme Court said were the operant facts:
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873, in the city of San Francisco, in the state of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom.
That’s it. No reference whatsoever to the legality (or lack thereof) of the residency of Wong’s parents. He was born here, subject to United States jurisdiction. That makes him a citizen, Justice Miller’s erroneous dictum in “Slaughter-House” notwithstanding.
Now, before I get to the simple reason Albertson is wrong, I’ll offer a tip to wannabe constitutional scholars, one given to me when I was in law school by a real constitutional scholar: when you are looking at cases involving the Bill of Rights and the Civil War Amendments, particularly 14A, beware of anything much older than the 20th century’s civil-rights era. “Slaughter-House” was decided in 1873. Wong was 1898. Sure, old law is often still good law. Marbury v. Madison, from 1803, endures, although a lot of conservative thinkers still say it was wrongly decided, so maybe they wouldn’t use that one to defend otherwise venerable decisions. But, if you want to stand on firmer ground, you want to find something a little more recent, and something that doesn’t just give you dictum to uphold you.
So here’s the simple reason: That birth in the United States confers citizenship to the child of parents illegally residing here was declared unequivocally, and not in dictum, by the Supreme Court in 1985:
Respondents, a married couple, are natives and citizens of Mexico… [They] paid a professional smuggler $450 to transport them into this country, entering the United States without inspection through the smuggler’s efforts… INS then instituted deportation proceedings against both respondents. By that time, respondent wife had given birth to a child, who, born in the United States, was a citizen of this country. INS v. Rios-Pineda, 471 US 444
Pretty plain, isn’t it? A direct ruling that the child of illegal residents was a citizen of the United States, solely by virtue of being born in the United States. And it’s not dictum, because the couple argued specifically that the citizenship of their children (there were eventually two, when, in the wording of the court, “respondent wife gave birth to a second citizen child”) was a relevant issue to their claim of hardship. The court accepted their children as citizens and conducted its hardship analysis on that basis.
Rios-Pineda was a unanimous decision (8-0, one Justice recusing himself), including that well knownflaming lefty, William H. Rehnquist.
So there it is. The dictum in “Slaughter-House” was rejected in Wong, which did not even consider the residency status of the parents when it found that birth in the United States confers citizenship on the child (unless the parents are under diplomatic jurisdiction), with citizenship by birth unanimously accepted by the court, about a hundred years later.
The question of whether or not anyone born in the United States should be a citizen thereby is, perhaps, a legitimate one. The question of whether or not the constitution currently grants citizenship on that basis, however, is not. It does, and anyone who wants it otherwise will need a new amendment to make it so.
(If you want something even more up to date, there’s a great little briefing on the subject, prepared in 2012 by the Congressional Research Service. I’d say you should always go to something like that for guidance on the law, and not to The Bull Elephant, but that would just be dictum.)