WSJ lets AZ state senator rewrite history in attack on birthright citizenship

WSJ uncritically reports claim that Citizenship Clause "had nothing to do with aliens"

From a July 30 Wall Street Journal article:

In Arizona, Republican state Sen. Russell Pearce, the architect of the immigration law that drew a legal challenge from the Obama administration, said he wanted to deny U.S. citizenship to children born in his state to illegal immigrants.

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Mr. Pearce, like some other proponents of the change, argued that the amendment as written doesn't apply to illegal immigrants. Because illegal immigrants aren't "subject to the jurisdiction" of the U.S., as the amendment requires, they fall outside its protection, these people argue. A group of House lawmakers made a similar argument when they tried to pass legislation changing the birthright principle in 2005.

"When it was ratified in 1868, the amendment had to do with African-Americans; it had nothing to do with aliens," said Mr. Pearce. "It's got to be fixed."

Given the controversial nature of this proposal, successfully amending the Constitution would be considered a long shot. It requires a vote of two-thirds of the House and of the Senate, and must be ratified by three-fourths of state legislators.

In fact, Senate debate shows Congress explicitly recognized impact of amendment on "aliens"

Section 1 of the 14^th 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

CRS: Congress "intended to extend U.S. citizenship" to everyone born in the U.S. regardless of "alienage of the parents." The Congressional Research Service stated in a September 2005 report:

Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents.

Opponent of 14^th Amendment objected to Citizenship Clause because of concerns about immigration and the "character" of foreign peoples.  The Senate debate over the Citizenship Clause of the 14^th Amendment indicates that both proponents and opponents of the clause believed that it would apply to the children of foreigners. During the debate, Senator Edgar Cowan of Pennsylvania, who voted against the 14^th amendment, expressed concerns that Chinese immigrants would overrun California. He stated:

[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? I do not know that the contingency will ever happen, but it may be well to consider it while we are on this point.

As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she chooses who is not a citizen of some one of the United States. She cannot forbid his entrance; but unquestionably, if she was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, she would have the right to say that those people should not come there. It depends upon the inherent character of the men. Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society.

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They may pour in their million upon our Pacific coast in a very short time. Are the States to lose control over this immigration? Is the United States to determine that they are to be citizens?

Cowan further said of California:

Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit.

Supporter of Citizenship Clause: "[I]t is proposed to declare" that "the children begotten of Chinese parents" "shall be citizens." Senator John Conness of California responded to Cowan's remarks, stating:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

Conness later added:

We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United Sates to be entitled to civil rights and to equal protection before the law with others.

Referring to Cowan's remarks, Conness also stated that "it may be very good capital in an electioneering campaign to declaim against the Chinese."

WSJ reports claim that illegal immigrants "aren't 'subject to the jurisdiction' of the U.S."

From a July 30 Wall Street Journal article:

Mr. Pearce, like some other proponents of the change, argued that the amendment as written doesn't apply to illegal immigrants. Because illegal immigrants aren't "subject to the jurisdiction" of the U.S., as the amendment requires, they fall outside its protection, these people argue. A group of House lawmakers made a similar argument when they tried to pass legislation changing the birthright principle in 2005.

Former Clerk to Justice Thomas: Everyone "required to obey U.S. laws" is "subject to the jurisdiction" of the U.S.

 Former Thomas Clerk: "Subject to the jurisdiction" of the U.S. covers those "who are required to obey U.S. laws." James C. Ho, the Solicitor General of Texas who previously clerked for Justice Clarence Thomas, worked in the Bush Administration and served as Chief Counsel to Sen. John Cornyn (R-TX), wrote in 2006:

To be "subject to the jurisdiction" of the U.S. is simply to be subject to the authority of the U.S. government. The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national alle­giance, or past compliance. All must obey.

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Of course, the jurisdictional requirement of the Citizenship Clause must do something - and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most nota­bly, foreign diplomats and enemy soldiers - as agents of a foreign sovereign - are not subject to U.S. law, notwithstanding their presence within U.S. territory. Foreign dip­lomats enjoy diplomatic immunity, while lawful enemy combatants enjoy combatant immunity. Accordingly, children born to them are not entitled to birthright citizen­ship under the Fourteenth Amendment.

Supreme Court ruled that Citizenship Clause applies to "all children here born of resident aliens." Ho further noted that "In United States v. Wong Kim Ark (1989), the U.S. Supreme Court confirmed that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship under the Fourteenth Amendment." The Court stated:

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.

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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.

Supreme Court rejected claim that unauthorized immigrants are not "within the jurisdiction" of a State. Ho further wrote that "the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe (1982)" -- which struck down a Texas law denying education funding for illegal immigrants -- and that "although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protec­tion Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are 'subject to the jurisdiction' of the U.S., no less than legal aliens and U.S. citizens." Ho wrote:

Writing for the majority, Justice Bren­nan explicitly rejected the contention that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting con­struction of the phrase 'within its jurisdic­tion.'"

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The four dissenting justices - Chief Justice Burger, joined by Justices White, Rehnquist, and O'Connor - rejected Bren­nan's application of equal protection to the case at hand. But they pointedly expressed "no quarrel" with his threshold determina­tion that "the Fourteenth Amendment ap­plies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."

Princeton provost Eisgruber: "Children of illegal aliens are certainly 'subject to the jurisdiction of the United Sates' in the sense that they have no immunity from American law." In a 1997 New York University Law Review article, Christopher L. Eisgruber, provost of Princeton University and a former clerk for Supreme Court Justice John Paul Stevens, wrote:

The United States Constitution guarantees citizenship to almost every child born in the United States. Apart from an exception for children born to foreign diplomats, n2 the Constitution's birthplace principle applies without regard to the ethnicity or legal status of a child's parents - so, for example, children born in the United States to illegal aliens are American citizens.

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Wong Kim Ark suggested that the jurisdictional proviso should be read narrowly. The majority was of the view that the real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States," by the addition, "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases - children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State - both of which ... had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

As one might infer from this passage, it is generally accepted that the jurisdictional proviso excludes from citizenship children born to foreign diplomats in the United States. That result seems reasonable since diplomats enjoy special immunity from domestic law and reside in the United States only to serve a foreign sovereign.

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Professors Schuck and Smith recognize that their interpretation departs markedly from existing law. Much of the argument in their book is historical in character. As they point out, however, the historical evidence yields no clear conclusions about the implications of the Fourteenth Amendment for the children of illegal aliens; indeed, Congress did not begin restricting immigration into the United States until after the Fourteenth Amendment was enacted. Moreover, the reading proposed by Schuck and Smith is hardly the most textually obvious one - the children of illegal aliens are certainly "subject to the jurisdiction of the United States" in the sense that they have no immunity from American law.