by Bruce Dunlavy

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When it comes to citizenship by birth, nearly all cases worldwide fall under two laws. One is jus sanguinis (Latin for “law of the blood”), in which citizenship is granted to newborns based on the citizenship of one or both parents. The other is jus soli (Latin for “law of the soil”), which attributes citizenship based on the nation in which a child is born. Some countries practice one, some the other. The United States practices both.

In an interview that aired October 30 on Axios on HBO, President Donald Trump announced that he had been told that he could issue an executive order that would end the rule of jus soli in the USA. Whether he will in fact issue such an order, or whether Congress will enact a law to institute the same end is uncertain. No doubt the idea was brought up in part because immigration is a hot-button issue for Republicans in next week’s elections.

The issue of the citizenship of immigrants and their offspring goes far back in American history, even to our first founding document, Declaration of Independence. In it, the framers elucidated the reasons compelling the American colonies to secede from the United Kingdom, and among these was the complaint that King George III had “endeavoured to prevent the Population of these States, for that purpose obstructing the Laws for the Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither…”

The Constitution itself, in Article I, gives Congress the power to “establish an uniform Rule of Naturalization,” demonstrating that the framers wanted the laws of citizenship to be the same in all of the States. This is not a simple concept. Matters of citizenship were as important as anything else to the Founding Fathers, because those matters are bound up with the fundamental issue of race.

How often do we hear, “Oh, why does everything always have to be about race?” The answer is, “Because this is America, and in America race is a part of everything.” From colonial times until 1865, the United States permitted slavery. Slaves were invariably of African descent, so anything that affected them was a racial matter.

In his Axios interview, Trump remarked (in his typically awkward way) “We’re the only country in the world where a person comes in and has a baby and the baby is essentially a citizen of the United States.” Well, that’s true in the sense that a baby born in some other country is not essentially a citizen of the United States, but we can assume the president meant that the USA is the only country in which a baby born there acquires the citizenship of the country in which it is born. That is not true.

In fact about one-sixth of the world’s nations recognize jus soli. Those nations that do are almost all in the Western Hemisphere, where only five countries are exceptions: the Dominican Republic, Haiti, Cuba, Costa Rica, Suriname, and the French territories. One can see the influence of racial preferences in almost all of those. Elsewhere in the world, unrestricted jus soli is recognized only in Pakistan, Fiji, Lesotho, Tuvalu, and Tanzania.

What is different about the Western Hemisphere? Our history of race-based slavery, of course. Africans were brought to the Americas to serve as slaves, and slaves could not be citizens. As a result, there was considerable argument among the Colonies, and then the States of the USA, about jus soli. Could the American-born offspring of slaves become citizens if they were freed? As was so often the case in racial disputes, the Founding Fathers punted. No mention was made of birthright citizenship, and the lack of resolution was a source of contentious debate. It should be noted, however, that at the time of our nation’s founding, British common law granted citizenship to those “born within the areas of allegiance to the king,” meaning that those born within the realm who also maintained loyalty to the British monarch were also entitled to the protections of the monarch (i.e., citizenship).

For the first sixty-plus years of American Constitutional government, the matter of birthright citizenship was undetermined, and that left slaves, free blacks, and their supporters uneasy. Not all States allowed free blacks to vote, and voting is an essential hallmark of citizenship in the USA. A bigger problem for African-Americans, both free and enslaved, was that of what was called “colonization.” Some States required slaves who obtained freedom to leave the State, and those States that did not often maintained a nebulous legal status for  free Blacks.

Colonization might also be called “deportation,” as noted by Johns Hopkins University Professor of History Martha S. Jones in her book, Birthright Citizens. Efforts to persuade or compel free black Americans to emigrate to the Caribbean or to Africa were common (the nation of Liberia was founded for this purpose). Free blacks were concerned that without citizenship they might not be able to defend themselves against removal from the nation where they were born and had lived their entire lives.

The U.S. Supreme Court made a clear statement in Dred Scott v. Sandford (1857). That decision, written by Chief Justice Roger Taney, proclaimed that not only were slaves not citizens, but also that free blacks had “no rights which the white man is bound to respect.” By denying them any rights, Dred Scott effectively deprived free blacks of citizenship and made all African-Americans subject to whatever treatment any white person could get away with.
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Thus, after the Civil War, the Civil Rights Act of 1866 started a chain of acts to enshrine citizenship to all Americans, particularly former slaves. That Act, passed over President Andrew Johnson’s veto, explicitly conferring citizenship to all people born in the United States who are not subject to foreign jurisdiction (referring to children born to visiting foreign government officials, ambassadors and other diplomatic staff who are not subject to American jurisdiction because of diplomatic immunity, and members of foreign armies invading the USA in war). The Reconstruction Amendments to the Constitution followed, with the Fourteenth Amendment laying out the rules for citizenship and declaring that States could not deprive anyone of rights granted under the national Constitution. The first sentence of that Amendment reads, “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.”

The framers of the Amendment discussed at length what the exact wording should be in regard to birthright citizenship, and the wording that was eventually adopted, although clear on its face, was interpreted in different ways, even by the authors of the Amendment. It was not until 1898 that the Supreme Court made a definitive ruling on what the Amendment means.

United States v. Wong Kim Ark (1898) was an ideal case to decide jus soli in the USA. Wong Kim Ark was born in the United States to Chinese-born parents in 1873. In 1882, the Chinese Exclusion Act was implemented, denying immigration to persons from China. When Wong Kim Ark later visited China, he was denied readmission to the USA, based on the 1882 Act. Although the subject had been addressed before lower courts, this was the first such case heard by SCOTUS. The Court’s 6-2 decision made it clear that Wong Kim Ark had been born a USA citizen and remained one.

What has never been determined in the courts is what the status of children born on USA soil to parents who have entered or remained in the country illegally. It is a complicated concept for several reasons. Here are some examples:

*since the majority of undocumented aliens entered the USA legally and then overstayed their visas, the issue changes from illegal entry to illegal remainder
*immigrants who request asylum and are in the USA while awaiting an asylum hearing are in the country legally
*refugee status is handled under rules separate from those applying to some other classes of immigrants.

The issue returns, as it usually does, to its original point of dispute. In this case, we are back to the issue of race. African and Asian immigrants have been subjected to attempts to deprive them of citizenship, and the current argument is about Latinx (and, to a lesser extent, Middle Easterners). The Latinx population seeking to come to the USA is largely mestizo and almost entirely Spanish-speaking. If they arrive in the United States and bear children here, the denial of citizenship to those children will create a permanent underclass of non-citizens who have spent their entire lives in this country, may have no citizenship elsewhere (and thus nowhere else to go), and who may, without cause, be refused naturalization. This is not the America of equality or the America of representative government. It is more like the America of slavery times.