POLITICS
08/18/2015 02:50 pm ET Updated Aug 18, 2015

Racist Fears Have Long Driven Attempts To Restrict Birthright Citizenship

From Dred Scott to the Chinese Exclusion Act, America has a dark history of trying to deny citizenship to certain groups.
<span>The case of Wong Kim Ark, who was born in San Francisco to Chinese parents, went to the Supreme Court in the late 19th
Credit: Irideae/Flickr
The case of Wong Kim Ark, who was born in San Francisco to Chinese parents, went to the Supreme Court in the late 19th century on the issue of birthright citizenship rights for immigrants' children who were born in the United States. 

WASHINGTON -- Prominent figures in the Republican Party in recent days have expressed renewed interest in repealing the 14th Amendment to the Constitution, which would take away the automatic right of those born in the United States to become citizens of the country. Even a number of the GOP presidential candidates argue that this privilege has been abused and is no longer necessary in modern times.

But rescinding birthright citizenship privileges would return the U.S. to some of its darkest chapters, when politicians tried to deny citizenship rights to black people and when the country was overtaken by anti-Chinese xenophobia. 

Walter Dellinger has been trying to push back against the anti-birthright citizenship movement since the mid-1990s, when he served as a top legal official in President Bill Clinton's administration and testified against such an effort before a House committee.

He told The Huffington Post Tuesday that the country is at a "critical moment" in this debate, when a major political party may nominate as its presidential candidate someone who embraces the end of birthright citizenship.

"It would fundamentally change the identity of America," Dellinger said, "to create a permanent caste that was excluded from citizenship generation after generation."

Citizenship by birth has been enshrined in common law since America's founding. The first time in the nation's history that this right was taken away for a group of people was in 1857, when the Supreme Court issued its shameful Dred Scott decision holding that black people, either free or slave, could never become U.S. citizens.

Dred Scott unsuccessfully sued for his freedom, leading to the Supreme Court's infamous 1857 decision, Dred Scott v. Sandford
Credit: The Southeast Missourian via Associated Press
Dred Scott unsuccessfully sued for his freedom, leading to the Supreme Court's infamous 1857 decision, Dred Scott v. Sandford.

Eleven years later, the U.S. rectified that mistake and ratified the 14th Amendment, which states, "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." 

One of the arguments critics put forth for doing away with this provision is that it has served its purpose. Slavery is gone, they say, and it's no longer applicable to modern times.

In 2010, Sen. Rand Paul (R-Ky.), who is now running for president, argued that it might be time to "amend the Constitution because I don't think the 14th Amendment was meant to apply to illegal aliens. It was meant to apply to the children of slaves."

But in fact, the framers of the 14th Amendment were thinking of immigrants' children, as they made clear in an 1866 debate on the Senate floor. 

Sen. Edgar Cowan (R-Pa.) was an opponent of birthright citizenship and specifically worried about the measure leading to an influx of immigrants. When he asked whether the proposed legislation would cover children of immigrants, Sen. John Conness (R-Calif.), a supporter, said it would

COWAN: I am really desirous to have a legal definition of "citizenship of the United States." ... Is the child of the Chinese immigrant in California a citizen? [...]

 

CONNESS: The proposition before us...relates...to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. ... I am in favor of doing so.

 

There was a substantial amount of racism wrapped up in fears about granting birthright citizenship to immigrants' children. Cowan said senators should consider what would happen if California, for instance, were "overrun by a flood of immigration of the Mongol race."

Anti-Chinese sentiment was high in the late 19th century, with people worried that Chinese immigrants -- who were viewed as racially inferior -- would come in and take away the jobs of hardworking Americans. In response, politicians passed the Chinese Exclusion Act, which essentially stopped Chinese immigration and barred Chinese residents of the U.S. from becoming citizens.

Officials also tried to stop the American-born children of Chinese immigrants from becoming citizens. Wong Kim Ark was born in San Francisco to Chinese immigrants. When the U.S. government refused to grant him citizenship, he challenged the decision under the 14th Amendment, and his case went to the Supreme Court. The Court affirmed in United States v. Wong Kim Ark (1898) that immigrants' children born in the United States are entitled to citizenship. 

The Supreme Court noted in its majority opinion that the importance of birthright citizenship was indicated by the fact that it was codified as an amendment, rather than as a regular law. 

"The same congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent congress, framed the fourteenth amendment of the constitution," the justices wrote.

Dellinger warned that people who want to get rid of birthright citizenship should think more carefully about the implications.

 "Today, it serves a very important function, that no one can go back to previous generations and find out that your claim to be a citizen is faulty because your grandparent or great-grandparents was not lawfully in the country," he said. "That's the critical importance of wiping the slate clean."

"If it weren't for birthright citizenship, people could go back and say, 'We found out your great-grandparent arrived at Ellis Island under a different name, and therefore none of her descendants are citizens either,'" Dellinger added. "Birthright citizenship eliminates all of those questions."


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