Wong does not make a birthright for illegal aliens

Birthright citizenship, the 14th Amendment, anchor babies and illegal immigration are dominating the news.  

Donald Trump has opened the discussion even more when he called for the denial of automatic citizenship for anchor babies.  Even Jeb Bush, an open border and amnesty advocate, has denounced the practice.

The article below by Colin McNickle is an insightful look into the issue.  All OFIR members should read the article and learn what’s true and what’s not true about birthright citizenship.

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Wong does not make a birthright for illegal aliens

By Colin McNickle, Pittsburgh Tribune-Review (Greensburg, Pa.)

 August 24, 2015
 
The firestorm that has erupted anew over "birthright citizenship" exposes the manifest dangers of constitutional ignorance. Not Donald Trump's but that of his critics who have shown remarkable reading incomprehension regarding the Constitution and the Supreme Court case they so regularly cite in defense of their position.

A diverse chattering class of liberals, "progressives," conservatives and even, remarkably, libertarians pounced on Mr. Trump when he said that the children of illegal aliens born in the United States are not, under the 14th Amendment, automatically citizens of the United States.

Fox News host Bill O'Reilly, for one, would have none of that. "If you are born here, you're an American, period," he said, sparring with Trump, one of the gaggle of Republican presidential contenders. Later, Mr. O'Reilly, as have many others, cited United States v. Wong Kim Ark, decided by the Supreme Court in 1898.

As the Oxford Companion to the Supreme Court notes, at issue in Wong was the citizenship status of those of Chinese descent. An 1882 law already had barred Chinese from becoming naturalized citizens; "exclusionists" sought to bar them from birthright citizenship as well (based on the nationality of their parents and not the place of their birth).

Wong Kim Ark was born to Chinese parents in San Francisco in 1873. But, later, following a trip to China, he was denied readmission to the United States. "The government argued that Wong Kim Ark was not a citizen because his Chinese parents made him subject to the emperor of China."

The logic was tortured. Nonetheless, its essence, properly employed, goes to the heart of the 14th Amendment:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof (emphasis added), are citizens of the United States and of the State wherein they reside."

The high court, citing not only common law but the 14th Amendment, ruled 6-2 that citizenship was guaranteed to all persons born in the United States, regardless of their heritage.

So, case closed, right? The Supreme Court ruled birthright citizenship is the law of the land for all, right? The Donald Trump argument is populist pap and for naught, right?
Well, not exactly.

The Wong case involved the child of legal resident aliens. "The Supreme Court has never ruled directly on the question of birthright citizenship for the children of illegal aliens," wrote Lino A. Graglia, a University of Texas law professor, in a seminal 2010 white paper.

And illegal aliens clearly are subject to the jurisdiction of the country whence they came.

But what about the common law component of the court's Wong decision?

"The court recognized that even a rule based on soil and physical presence could not rationally be applied to grant birthright citizenship to persons whose presence in a country was not only without the government's consent but in violation of the law,"

Professor Graglia wrote.  A number of constitutional scholars -- from Graglia, to Yale law professor Peter Schuck, to Gerald Posner -- say Congress can and should act -- without repealing or amending the 14th Amendment -- to end the absurdity of constitutionally warrantless birthright citizenship for illegal aliens, citizenship that's wholly unsupported in case law.

After all, the Constitution "should not be interpreted to require an absurdity," Graglia concluded. And it need not be. Because it doesn't.

Colin McNickle is Trib Total Media's director of editorial pages.