I write this in apology to the Chinese and Native American people living in the United States during the 1860s.
Your history is being short-changed. Sorry you’re being maligned by the often raucous and facts-be-damned tenor of immigration debate. But I’m sure you know something about how misplaced zeal can inspire bad law — or in this case, attempts to rewrite the U.S. Constitution.
The goal of some Republican members of Congress today is to undermine the standard of citizenship for every baby born on U.S. soil sealed by the 14th Amendment. The new vision is that the children of undocumented immigrants, the vast majority being Latino, shouldn’t be included.
To drum up support, backers trounce on historical accuracy.
They pitch the idea that when Congress enacted the 14th Amendment in 1868, all they had in mind was rectifying the sins of that post-slavery era. In particular, the need was to address the Dred Scott decision, which said people of African descent could not be citizens.
The claim is that the framers of the 14th Amendment didn’t mean to include the children of immigrants in the citizenship clauses.
Problem is, you did exist. And, thankfully, researchers have gone back to the original records. The D.C.-based Immigration Policy Center, in particular, has done a marvelous job of digging deeper.
Their scholars have reconstructed 1866 debates in which concerns were raised about the nation being overrun by births from people clearly viewed then as less equal: gypsies in Pennsylvania and Chinese immigrants. Senators also discussed birthright citizenship in context of native tribal sovereignty.
The 14th Amendment passed anyway. Meaning, they understood its ramifications for all. Court decisions later reaffirmed the intent.
Most notable is the 1898 U.S. Supreme Court ruling in the case of San Francisco-born Wong Kim Ark. This son of Chinese immigrants left the U.S. and was denied re-entry. For much of the nation’s early history, Chinese immigrants like his parents were excluded by law from becoming citizens.
He sued. And the ruling is clear: “To hold that the 14th 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.”
Legal scholars say there is virtually no chance the 14th Amendment will be rewritten. Wisely, it is very difficult to change the Constitution, requiring three-quarters of states to ratify a joint resolution.
Such realities are causing a shift in tactics. The new plan involves states creating a bureaucratic and costly mess of state citizenships in conflict with the Constitution. Such states would allow citizenship only to babies with at least one parent a legal permanent resident or citizen. Lawsuits are expected, with the long-term goal of a favorable ruling by the U.S. Supreme Court.
Congressional members from Pennsylvania, South Carolina, Arizona, Oklahoma and Georgia have expressed interest.
Such dangerous tinkering would create a caste system in America, exactly what the framers of the 14th Amendment counseled against. They didn’t want something as sacred as citizenship to be left to the whims of the day, be it theirs or those of current politicians.
Finally, all this twisting and turning sidesteps the real concern: illegal immigration. We need large-scale changes to rectify the fact that millions of people have been drawn to the country for work, but largely without a viable way to do so legally.
But this handful of shallow-minded politicians would prefer to tinker with the rights of the approximately 340,000 babies born to those immigrants annually in recent years.
Those children and the nation would fare better if elected officials would stick to brushing up on constitutional history.