The Enduring Debate Over birthright Citizenship: A Past and Legal Examination
The question of who qualifies as an American citizen, notably those born to undocumented immigrants, remains one of the most contentious issues in U.S. immigration law.While the 14th AmendmentS Citizenship Clause appears straightforward - granting citizenship to ”all persons born or naturalized in the United States” - its interpretation has been fiercely debated for decades. A pivotal, and ultimately controversial, challenge to the long-held understanding of this clause emerged in the early 2000s with the publication of “Citizenship Without Consent,” a book by legal scholars Peter Schuck and Rogers Smith. Thier work ignited a firestorm within the legal community, prompting a re-examination of the historical context and original intent behind the 14th Amendment. this article delves into the core arguments presented by Schuck and Smith, the robust criticisms leveled against their interpretation, and the broader historical landscape that shaped the Citizenship Clause, offering a comprehensive analysis of this enduring legal debate.
Challenging the Conventional Wisdom: Schuck and Smith’s Argument
Schuck and Smith’s central contention was that the phrase “subject to the jurisdiction” within the 14th Amendment carried a meaning far beyond the simple fact of birth within U.S. territory. They argued it implied a reciprocal relationship - a commitment of allegiance to the United States and intentional acceptance by the goverment. This wasn’t merely about physical presence; it was about a voluntary compact.
Their reasoning stemmed from the historical context. Illegal immigration, as we understand it today, was virtually nonexistent in 1868 when the 14th Amendment was ratified. Therefore, they posited, the framers couldn’t have envisioned extending citizenship to children born to individuals who had entered the country “without consent.” Moreover, they believed existing Supreme Court precedent, specifically U.S. v.Wong Kim Ark (1898), which affirmed birthright citizenship for a child of legal Chinese immigrants, didn’t address the scenario of undocumented parents.
Schuck and Smith proposed that congress possessed the authority to limit birthright citizenship to the children of U.S. citizens and lawful permanent residents.They acknowledged this was a novel idea - “has to our knowledge never been seriously considered” - but believed it was legally defensible. Smith himself clarified that he wasn’t advocating for such a change, only asserting its potential legality. The intention, he stated, was to be “provocative,” to force a re-evaluation of a seemingly settled legal question.
A Storm of Criticism: Why the Legal Community Rejected Their Thesis
The response from Schuck and Smith’s peers was overwhelmingly negative.Leading immigration scholars characterized their arguments as “seriously flawed,” “simply puzzling,” and even ”morally incoherent.” The established legal consensus, built over decades, held firm.
Critics pointed out a essential flaw in their reasoning: undocumented immigrants are subject to U.S. law. They are bound by the legal system, pay taxes (often through payroll deductions and sales taxes), and are subject to prosecution for crimes. The argument that they exist outside the “jurisdiction” of the United States was demonstrably false.
Furthermore, scholars like Gerald Neuman of Harvard Law School highlighted the historical inaccuracies within the book. The authors’ claim that immigration was unregulated prior to the 14th Amendment was inaccurate. States had already implemented policies restricting entry based on economic status (“paupers” and the “infirm”) and racial prejudice (explicitly barring free Black people). Even at the federal level, the 1803 law prohibiting the importation of “people of color” demonstrated a clear attempt to control immigration based on race.
The Intent of the Framers: A Response to Dred Scott and a Broad Definition of Citizenship
The debate also centered on the framers’ intent. The 14th Amendment wasn’t drafted in a vacuum. It was a direct response to the disastrous Dred Scott v. Sandford (1857) decision, which infamously declared that individuals of african descent, whether enslaved or free, could not be citizens of the United States.
The amendment’s authors deliberately sought to create a robust and unambiguous definition of citizenship that would be impervious to judicial challenges. They understood that the issue of citizenship was deeply intertwined with the contentious debate over slavery and sought to establish a clear, inclusive standard.
This is vividly illustrated by the debates surrounding the amendment’s ratification. Senator Edgar Cowan of Pennsylvania expressed fears of an influx of “gypsies” and ”the Mongol race,” questioning whether the children of Chinese immigrants should be considered citizens. Senator John
