Strengthening Constitutional Self-Government

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Bloodline Libel

Presumably in response to John Eastman's fine work on the history of the "subject to the jurisdiction thereof" clause of the 14th Amendment, in his latest column, Michael Gerson says that those who oppose "birthright citizenship" are "Advocates for bloodline citizenship."  Does Gerson think so little of those who disagree with him on this issue?  There are a few nativists out there, but I don't think they are representative.  I am fairly certain that the vast majority understand that it is Gerson, not those who oppose birthright citizenship, who want to make birth the key characteristic in determining who is a citizen of the U.S.  Most people I know who think birthright citizenship is a mistake belive the U.S. ought to allow a good number of immigrans to come to the U.S. and become citizens.  The key disagreement between Gerson and someone like myself is that he does not think that we the people should be able to choose who may join us as citizens.

Getting to the evidence, he writes:

Civil War America did not lack for unpopular immigrants. The 1860 Census found that 13.2 percent of the U.S. population was foreign-born. The figure today is 12.3 percent. During the debate over the 14th Amendment, Sen. Edgar Cowan of Pennsylvania complained that birthright citizenship would include Gypsies, "who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen." Others objected that the children of Chinese laborers would be covered. Supporters of the 14th Amendment conceded both cases -- and defended them. Said Sen. John Conness of California: "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 States to be entitled to civil rights and to equal protection before the law with others."

He does not quote some of the other parts of Conness's speech:  "The Chinese are regarded also not with favor as an addition to the population in a social point of view . . . they are not regarded as pleasant neighbors; their habits are not of a character that make them at all an inviting class to have near you, and the people so generally regard them."  And, he noted, Chinese workers tend to return to China.  "They do not bring their females to our country but in very limited numbers."  (Scanning over the debates quickly, I did not see anyone say they agreed with Conness.  The debate turned to other questions. But I read quickly, and may very well have missed the discussion).

In the sentence after the paragraph quoted above, Gerson notes, "The Radical Republicans who wrote the 14th Amendment were, in fact, quite radical."  Conness had been a Douglas Democrat and then a Union Republican.  To what degree he then became a radical, I don't know. He did vote to impeach President Johnson. 

It seems to me that Senator Trumbull's comment that "subject to the jurisdiction thereof" means "subject to the complete jurisdiction thereof" and "not owing allegiance to anybody else" is a better reading of the text.  Even so, Gerson does have at least one Senator on his side. (To be fair, Trumbull's comment was in the context of a discussion of Indians. Indian nations were not truly independent. They were captive nations.  But if an Indian mother gave birth one U.S. soil, rather than Indian lands, and her child was not a U.S. citizen, it would seem to imply that a person born in the U.S. to parents who had not become U.S. citizens, and who were from truly independent nations, would not be citizens).

Ulimately, it does not seem to me to be a coincidence that Justice Harlan dissented in both Plessy and in Wong Kim Ark (the birthright citizenship case).  The underlying principle, that an accident of birth is not to have ultimate importance in American law, is consistent.  After all, the principles of 1776 suggest that race is an arbitrary category in law.  Similarly, they suggest that the republic is a compact.  The parties to that compact have the right to decide who joins, and under what conditions.  Enshrining those principles more clearly in American law was, after all, the purpose of the 14th Amendment.  Trumbull and Harlan understood that.

Note: I updated this from the original post.

P.S. I recommend the opinion, both majority and dissenting in U.S. v Wong Kim Ark.  Very illuminating.

Categories > Courts

Discussions - 2 Comments

Good stuff, Richards.

However, "restrictionist" conservatives need to understand that while they are right to affirm the principle of the citiznery having ultimate say about who becomes citizens (which means saying that the 14th was not framed carefully enough on birth-right citizenship), 1) we are not anytime soon going to amend the 14th, 2) a consistent and/or politically-explainable originalism probably cannot justify a new interpretation of the 14th on this, and 3) this issue is not about anchor-babies alone.

3) is the key political factor here. It is one thing to be against amnesty for law-breakers, even law-breakers you have a great deal of sympathy for, such as many of us (such as I) have for most illegal Mexican immigrants. That stand is the correct one. But it is another to be against the defacto amnesty extended to the children of illegals via birthright citizenship, an act that prevents what would otherwise be a defacto bill-of-attainder perpetual punishment. Many, if not most, of our Mexican illegals do not make the cynical "anchor baby" calculation, even if it is a plus-factor in the minds of many. Most come thinking their lives will remain primarily anchored in Mexico. Life often "schools" them differently, and meanwhile, their kids go to American schools and become the friends of our kids. The politics of punishing them for their parents sins is (rightly) poisonous, and the politics of getting 3/4 of the states with an amendment are daunting. There are policy-ways around this implication even given the long-shot senario of amending the 14th, but unless conservatives make it clear from the get-go they are against that implication, they will get harmed by this issue. It isn't cut-and-dried.

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