Love, Joy, Feminism
In doing some research on Billings state senate candidate Robert Saunders, I came upon a provision in the Montana Republican Party platform that surprised me.
We . . . support the original interpretation of the 14th amendment so that only children born to citizens and legal permanent residents are U.S. citizens at birth.
In other words, the Montana Republican Party officially supports doing away with birthright citizenship. Donald Trump made waves last year when he called for ending birthright citizenship; I hadn’t realized that there were official Republican institutions that had made calling for the dismantling of birthright citizenship part of their formal platforms. Birthright citizenship is one way in which the U.S. has a real claim to being exceptional. Very few other developed countries grant citizenship to every child born within their borders, but we do. Birthright citizenship is a testament to our inclusiveness and diversity. It’s also one of Republicans’ most signature achievements; after all, it was Republicans who championed and passed the 14th amendment.
[I]t was the GOP that wrote birthright citizenship into America’s constitution. The leaders of the 1866 Republican Party—the Party of Lincoln—were staunch supporters of the idea. Indeed, birthright citizenship was central to the Republican vision for post-Civil War America, and a key dividing line between the supporters of President Andrew Johnson and those of the Republican leadership in Congress.
Birthright citizenship was written into our Constitution because, in an effort to deny rights to freed blacks, courts in several states states had ruled that birth within the territory of the United States did not automatically confer citizenship. The 14th amendment, championed by Republicans, was a rejection of this claim and a bold statement that every individual both within the territory of the United States became a citizen automatically. That was radical, yes, and it was important.
And yet, Republicans appear to be in the process of walking away from this seminal policy. Montana is not alone in calling for an end to birthright citizenship. Check out Texas’ GOP platform:
We call on the United States Congress to pass a constitutional amendment that defines citizenship as those born to a citizen of the United States or through naturalization.
It’s unclear how many GOP state platforms condemn birthright citizenship—I couldn’t find a full tally—but that any do is a problem. And it’s not just state party platforms—the party’s presidential candidate himself has been championing the idea of getting rid of birthright citizenship altogether. This is a clear rejection of a policy pushed by Republicans when the party was in fact the “Party of Lincoln.” While Republicans have long since ceased to be the “Party of Lincoln” on a variety of metrics—including women’s rights and civil rights—this rejection is perhaps most difficult to explain away.
What about the Montana GOP’s claim that the “original interpretation” was that only the children of citizens and legal permanent residents have access to birthright citizenship? Yeah, that claim is wrong. It’s based on a misunderstanding of a Supreme Court case that made rather the opposite point. Let’s take a moment to look at the history of the 14th amendment, and at United States v. Wong Kim Ark (1898).
The 14th amendment, which states that “all persons born or naturalized in the United States . . . are citizens,” was passed in 1868 in the aftermath of the Civil War in order to ensure that both newly freed slaves and the nation’s already established free black population received U.S. citizenship. Little known fact—before the 14th amendment, you had to be white to be a U.S. citizen. This is actually why surveys first ask if you are white, black, etc., and then ask whether you are Hispanic—the Treaty of Guadalupe Hidalgo (1848) required that Mexican citizens living in territory granted to the U.S. be given U.S. citizenship, but by law you had to be white to be a citizen. The U.S. government solved this problem by putting Hispanics in the “white” category. Blacks and Asians, however, were excluded.
The Naturalization Act of 1870 allowed immigrants of African nationality or descent to apply for citizenship alongside free white individuals, but did not open naturalization to other racial groups. In 1882, the U.S. federal government banned Chinese immigration. This was the first time immigration was restricted at the federal level. When the 14th amendment was passed in 1868, there was for all practical purposes no such thing as “illegal” immigration. Our doors were open to immigrants with very little restriction. Immigrants with certain diseases, or deemed likely to become indigent, were turned back by individual states, but there were no quotas and there was no national immigration system.
The U.S. passed the Chinese Exclusion Act in a climate of extreme racism against Chinese immigrants. Immigration from China was confined primarily to the West Coast—where Chinese immigrants provided needed menial labor—and the racism these immigrants faced was intense and horrific. Because they were not considered white, Chinese immigrants could not become U.S. citizens. But what of the children of Chinese immigrants, born in the U.S.? While Chinese immigration was banned in 1882, those Chinese who had already here were not deported. In 1880, nearly one-tenth of the population of California was Chinese. Were their children, born in the U.S., U.S. citizens? Surely not, said racist whites. Surely birthright citizenship didn’t apply to people like them, especially when their parents were excluded from ever becoming U.S. citizens.
Not so. In the United States v. Wong Kim Ark (1898), the U.S. Supreme Court ruled that children born in the U.S. to Chinese citizens who had immigrated to the U.S. were U.S. citizens at birth. The decision did not rest on the legality of the Chinese parents. Indeed, their legality did not even come up. The decision instead rested on whether the child of Chinese citizens who were “at the time of his birth domiciled residents of the United States” and “during all the time of their residence in the United States . . . engaged in business” was eligible for birthright citizenship, and the court issued a resounding yes. In other words, the issue was not whether or not the parents were legal immigrants but rather on whether they were living and working in the U.S.
It is perhaps worth noting that the decision was not unanimous. Two justices dissented, arguing that Congress should be allowed to prevent members of certain races, and their children, from ever becoming U.S. citizens (lots was said about how Chinese immigrants were “incapable of assimilating”). This dissent, in other words, was based not on parental legal status but on parental race.
The United States has restricted immigration in a number of dramatic ways since the Supreme Court issued its United States v. Wong Kim Ark decision. Whether the children of undocumented immigrants are eligible for birthright citizenship has never come before the Supreme Court. For one thing, the language of the fourteenth amendment is fairly open and shut—“all persons born or naturalized in the United States . . . are citizens.” For another thing, United States v. Wong Kim Ark was decided during a time of virulent anti-Chinese sentiment. While the parents of the child in question immigrated legally (they couldn’t have done otherwise, at the time, because immigration was not yet restricted), many white Americans still felt strongly their children should not be granted citizenship. And yet, the Supreme Court ruled on the side of birthright citizenship.
The Republicans often term themselves the “Party of Lincoln.” They argue that they are the true supporters of civil rights, and they point to their role in the Civil War. If they’re so interested in embracing that mantle, it would behove them to stop attacking birthright citizenship, one of the most lasting and influential policies to come out of Republican efforts during that period.
The Fourteenth Amendment is one of the Republican Party’s greatest achievements. With it, Republicans continued to write Lincoln’s promise of “a new birth of freedom” into our Constitution and lead a Second Founding of our republic. Birthright citizenship was a key part of the Republican program.
Key word: was
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