Sometimes the old dead guys get it right.
United States v. Wong Kim Ark
Sunday evening has arrived, the pasta sauce is already simmering, and the (last) week’s post still hasn’t gone out. Cut my class load in half or pay me $100k more per year, take your pick, and then I’ll apologize. In the meantime, if the slap and dash in the back of a limo on the way to JFK was good enough for Buckley, well…
If you’re in the SCOTUS know, you may be aware that the right-wing nutjob law profs have been at it over the last year [insert, e.g., tweets from morons at Georgetown and Minnesota Law here], pretending that the Fourteenth Amendment to the United States Constitution doesn’t guarantee birthright citizenship. You’ll also know that Donald has issued an executive order to the same effect, which the Supreme Court may well uphold this coming spring/summer opinion season. It should tell you all you need to know about the “debate” to learn that the rightwingers trying to strip birthright citizenship from brown children born to undocumented parents are relying on some long-lost and newfound original understanding—which even the Supreme Court missed when settling the matter only 30 years after the Fourteenth Amendment’s ratification. Because, surprisingly enough, when the Court took up the matter for the first (and until now, only) time in 1898, they actually reached the right answer. How’s that for history and tradition?
Sometime in the late 1890s, San Francisco-born Wong Kim Ark accompanied his Chinese-national-but-lawful-permanent-resident parents on a visit to the home country. On his return, customs detained Ark, reasoning that he couldn’t possibly be a citizen (recall the Chinese Exclusion Acts barred his parents from naturalizing) and detained him. Ark filed a habeas corpus petition, which the Northern District of California granted (let’s hear it for 450 Golden Gate) and the Federal Government appealed to the Supreme Court to chuck him out.
Chief Justice Fuller and Justice Harlan (yeah, that one, sorry) would have let them. They reasoned that all this namby-pamby birthright (jus soli) citizenship nonsense was a relic of English feudalism, which we tossed in ‘76. All that common law, gone, Chief Justice Roger B. Taney told us (hold up, is that the guy you want to be citing here?). No such thing at the Federal level. So what replaced it? The Civil Law of Nations—the rule of jus sangui. Citizenship followed parentage, obviously. Otherwise, vacation babies wouldn’t be, you know, American citizens. Gasp. The horror.
Setting aside that jus sangui encapsulates very much the logic that Roger Taney wielded to deny citizenship to Black Americans on the grounds that their fore-bearers had been brought here purely to toil unremunerated in perpetuity, if you’ve spent even half an hour studying the law or have ever glimpsed at a history textbook, you’ll recognize all that as horseshit. American Law remains to this day a common law tradition. For most of our history, American courts would still look to British cases from time to time. Where do you think we got our notions of due process, property rights, basic criminal procedure, contract, and so much more? Hell, in 1898, Federal Courts still applied Federal General (simply put, Common) Law to commercial cases.
So as a matter of Hornbook law, Fuller flubbed it. But even more so as a matter of American political history. If the complaint with jus soli is that it’s a relic of Feudalism, boy do I have news about the Civil Law Tradition for you. Ever heard of France? Birthplace of Feudalism? Primary expositor of the civil law tradition by this point—the Code Napoleon? Submission to a god-king or an emperor? Still collecting “reparations” from Haiti? There’s jus sangui for you.
Contrast the bargain inherent in the common law’s jus soli: all born within the realm owe allegiance and submission but are also entitled to the Sovereign’s protection, which for what it’s worth, by 1688 means the King in Parliament. And this here’s the rub for Fuller, because he’s not so much worried about vacation babies as about the fact that, once properly recognized as a citizen, Wong Kim Ark can vote.
It’s this tradition, this bargain between the sovereign and the governed—entitled to both a say and protection, that Justice Gray’s majority opinion zeroes in on. Absolute sovereign territorial integrity means both that everyone born within that territory is born within the bargain and delineates the exceptions. If the Sovereign is essentially going to abandon someone born within that bargain to another sovereign, our Sovereign better have consented to it: thus children born to ambassadors and consuls, treated as bodily representatives of other sovereigns, or the courtesy of children born aboard foreign warships in our ports. And children born to hostile occupying forces aren’t actually born within the bargain.
The Fourteenth Amendment doesn’t really change any of this. If anything, Gray recognizes, the universal language of the amendment affirms jus soli, making damn clear that whatever racialized-exceptions we had concocted (Dred Scott) were now dead and buried. The legislative record even reveals that the Senate understood and agreed that the Fourteenth Amendment would make Chinese-American children citizens. True, we do technically add a third exception, Native American children born within tribal territory did not yet become citizens as of birth. Though, again, to Gray, that rested on the United States’ consent to the separate sovereignty of the tribes. But, in the main, the Fourteenth Amendment means exactly what it says. Anyone born within the jurisdiction of the United States is a citizen.
And here’s the best part. Because we can ignore all of that history and still reach the right result. Just read the text. Today’s rightwingers hope to convince the Court that undocumented people don’t exist within the “jurisdiction” of the United States because they aren’t here lawfully and, I guess, are contravening that jurisdiction? As Justice Gray recognized, the Fourteenth Amendment leaves no room for this argument. Again, just read the text:
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.
We need not attempt to interpret “jurisdiction” in a vacuum. The amendment uses it twice. Not just in the same amendment. Not just the same section. But the same sentence. The uses must align. If you are within the jurisdiction of the State such that they can violate your rights, you are within the jurisdiction for the purposes of birthright citizenship.
So today when we discuss the citizenship of a child born to undocumented people, we don’t actually have to jump into the legal histories of jus soli and jus sangui to determine which tradition prevailed at the Founding or during Reconstruction. We don’t even need to fight about analogies between undocumented persons and Native American tribes in the late 19th century, or worry about whether migrants cross the U.S. border at a rate sufficient to call it an invasion. The Fourteenth Amendment, as United States v. Wong Kim Ark recognized nearly 130 years ago recognized, gives us a simple test. If ICE could be present at a child’s birth, that child is an American citizen.
Reading—it’s not that hard.