11/11/2013 04:27 pm ET Updated Jan 23, 2014

Parallels Between DR and the Antebellum US

The recent decision of the Constitutional Court of the Dominican Republic denying birthright citizenship to residents of Haitian ancestry has a parallel in American history: the infamous antebellum decision of the U.S. Supreme Court in the Dred Scott case.

The Constitutional Court of the Dominican Republic interpreted Article 11 of its constitution, which, as of 1929, clearly denies Dominican citizenship to immigrants who are "in transit." The section was amended in 2010 to also deny birthright citizenship to persons born on Dominican soil of undocumented immigrants.

The decision finds that Haitian workers brought to the Dominican Republic at the beginning of the 20th century were immigrants "in transit." Given the need for labor that prompted the first of many waves of Haitian migration, that finding is not surprising. However, in accepting Article 11 in its entirety, the Court upholds a determination that places the Dominican Republic in a position contrary to the norms of the U.S. on birthright citizenship where the Dominican diaspora has lived for decades, some of whom are themselves undocumented.

Birthright citizenship is not a universal right. It is common in this hemisphere and throughout Latin America but it is by no means universally accepted. The sovereign right of every nation to define its citizenship is inalienable. On that score the Constitutional Court of the Dominican Republic is on solid ground. But the retroactive application of the decision is another thing entirely.

The Constitutional Court ordered an audit of all Dominican birth certificates issued since 1929 in an attempt to denaturalize hundreds of thousands of Dominican nationals. This retroactive application must also be viewed through the lens of international human rights law. Indeed, the specter of historical and contemporary racism against Haitian migrants in the Dominican Republic that will be fomented by this opinion has other, serious implications.

Birthright citizenship in the United States was developed in the middle of the 19th century and remains in place today. It took a Civil War to abolish slavery and the ratification of the Civil War amendments to the U.S. constitution to establish the right of citizenship to every "person" born in the country. Up until that time the Supreme Court case of Dred Scott v. Sandford defined in part, American citizenship.

Dred Scott was born a slave in the United States. However, the time, the fact that he was born in the U.S. or lived in states that abolished slavery, did not make him a free man. In suing for his freedom in federal court the first question raised was whether the court had jurisdiction to hear the case since federal courts were only open to citizens of the country and only "whites" could be citizens.

Scott asserted that his birth in the country and his presence in slave-free states granted jurisdiction. The Supreme Court dismissed his case in one of more racialized and infamous decisions of Supreme Court history. Blacks have "no rights that the white man is bound to respect,"* said the Court. Thus, birth in the country alone did not confer citizenship.

At the conclusion of the Civil War the country ratified the 14th Amendment -- the foundation of all of our civil rights laws. The amendment establishes the right to equal protection of the laws for all "persons" note, not limited to all citizens, throughout the country. The same 14th Amendment guarantees that all persons born within the jurisdiction of the United States, or naturalized therein, are citizens. In short the country had to survive a civil war to eliminate the vestiges of the Dred Scott case.

The parallels between these two decisions within these two sovereign nations cannot be ignored. Nor can we ignore the racism against African descendants that undergirds the opinions. Unquestionably, the Dominican Republic has the sovereign right to enforce its borders and define its citizenship. But it is the retroactive implementation of this sovereign power in the context of a historically fraught relationship with Haiti that can, and should, be questioned.

Far beyond the shores of Quisqueya -- the native Taino Indian name for the island of Hispaniola -- the Court's decision could creep into the current debate over immigration reform. It's no secret that the extreme wing of the conservative right yearns for the elimination of birthright citizenship, hence the derogatory references to border babies in some circles.

That reference is not the first, nor the last, time that some of our elected officials dream of retroactively redefining American citizenship. This is another transnational parallel between the immigration debates in America and in the Dominican Republic. The threat to birthright citizenship is something we must stop if the promise of equal protection is to become a reality.