Jonathan P. Baird

I must say I was surprised when I saw that illegal immigration was going to be a defining issue for Republican presidential candidates. After losing the Latino vote so decisively in 2008 and 2012 (McCain got 31% in 2008 and Romney got 28% in 2012), conventional wisdom had predicted the Republicans would moderate and support some version of comprehensive immigration reform, including a path to citizenship for the undocumented.

Conventional wisdom was wrong. Latino outreach does not appear to be on the Republican agenda. Not only have they not moderated, the Republicans have doubled down and pushed in a more extreme, nativist direction. Their candidates, most notably Donald Trump, have advocated a mass deportation of the eleven million undocumented, building a 2000 mile impenetrable wall on our southern border, rescinding the Executive Order on the DREAM act, and tripling the number of immigration agents.

We have also heard proposals like Chris Christie’s who suggested tracking non-citizens like FedEx courier packages.Then there is Scott Walker’s idea to build a wall on our Northern border with Canada.

Most radically, Trump has proposed ending birthright citizenship for so-called anchor babies. He has been joined ideologically in this endeavor by Scott Walker, Rand Paul, Lindsey Graham, Bobby Jindal and Rick Santorum, among others. Trump says that birthright citizenship remains the biggest magnet for illegal immigrants.

Birthright citizenship refers to a person’s acquisition of United States citizenship by virtue of the circumstances of their birth in the country.

Ending birthright citizenship would require addressing the Fourteenth Amendment of the U.S. Constitution, whether by court challenge or by constitutional amendment. The Fourteenth Amendment plainly states, in part,:

“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.”

Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by this Citizenship Clause.

At the risk of being called a loser by Trump fans, I admit that I find the idea of politicians’ monkeying with the Fourteenth Amendment a sickening prospect. One hundred and fifty years later, I don’t think it needs their “improvements”.

The Fourteenth Amendment is not any old amendment. The Civil War was fought over this amendment. There is much blood behind it. The Fourteenth Amendment negated the infamous Dred Scott decision of 1857 which held that neither slaves nor their descendants could ever become citizens. It is not an exaggeration to say that the Fourteenth Amendment is the best reflection of our fundamental national commitment to fairness.

Immigration restrictionists have latched on to the phrase “subject to the jurisdiction” to say that the Framers intended to exclude the children of illegal aliens from the protection of the Citizenship Clause. While no one can pretend to divine the intent of the Framers, I would submit that interpretation is highly unlikely.

A heavy preponderance of legal scholarship supports the proposition that the ratification debates taken as a whole indicate that the Fourteenth Amendment was designed to extend citizenship to all people born in the United States regardless of the race, ethnicity, or alienage of their parents.

I would particularly cite the work of historian, Garrett Epps, the author of Democracy Reborn, a fascinating history of the Fourteenth Amendment and the fight for equal rights in post-Civil War America. Epps has written:

“After the crime of slavery, the framers of the Fourteenth Amendment wanted to create a new nation in which there would be no sub-humans, no inferior caste that could be sold on to plantations or herded into camps. The citizenship clause is a key part of the structure they built. There are some scholars who disagree, but mostly they are not “the top”. Most of the anti-birthright “evidence” is phony.”

Epps points out the incongruity that passionate anti-slavery thinkers who devised the Citizenship Clause as a means of overruling Dred Scott would have any intention to create a new class of non-citizens lacking all rights. Context is important and Epps believes the Framers were very tuned in to migration controversies of the era. During the Civil War years, the U.S. population increased by four million people – most of them immigrants.

In that era, immigration restrictionists complained about gypsies and the Chinese. Epps says the Framers knew what they were doing and they intended to address both the matter of the former slaves and immigrants in drafting the Fourteenth Amendment. They wanted to put citizenship above the politics and prejudices of any given era.

In this connection, I would be remiss if I did not mention a little known but extremely relevant U.S. Supreme Court decision decided in 1898. The case, United States v. Wong Kim Ark, speaks directly to those complaining about anchor babies today. Wong Kim Ark, the son of Chinese parents, was born in San Francisco in 1873. His parents were not citizens and they moved back to China after his birth,

Wong Kim Ark became a test case when he returned to the U.S. from China, sought readmission into the country, and was refused. This was not his first return trip back to the U.S.. Wong Kim Ark sued, challenging the government’s refusal to recognize his citizenship.

This was an era of vicious racism directed against the Chinese who had been scapegoated, in part, because of a bad economy. Humiliating, berating, harassing, beating and murdering of Chinese was so commonplace that newspapers seldom bothered to print the stories. A less told story is the frequent lynching of Chinese workers that occurred in the West. In California, mob violence directed against Chinese people was not uncommon.

In the late 19th century, Congress passed a Chinese Exclusion Act which prohibited all immigration of Chinese laborers. The Exclusion Act also prohibited immigrants from China from becoming naturalized U.S. citizens. Violators faced up to 10 years’ imprisonment, plus deportation. I would note that, along with the Chinese, exclusion policies extended to the Japanese and Filipinos.

In spite of this very difficult political environment, the Supreme Court ruled for Wong Kim Ark, stating,

“…to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”

The Court narrowly interpreted the Citizenship Clause phrase “subject to the jurisdiction” to mean being required to obey U.S. law. Down through the years, the excluded have been a limited class of individuals who are not subject to U.S. law such as the children of ambassadors.

In considering the matter of illegal immigration now, I am struck by historical parallels with earlier waves of nativist hysteria. It is a recurring theme in American history where some ethnic group or other is blamed for failures in the economy. Targets have included Irish Catholics, German-Americans, the Chinese, the Jews, and south-eastern Europeans, among others.

Attacking birthright citizenship is just the latest incarnation of this deep-seated nativist tendency. This time around the target is Latinos. How they crashed the economy, exported good jobs from the U.S. and refused to raise wages is never explained.

In his essay, “The Paranoid Style in American Politics”, the late historian Richard Hofstadter discusses conspiratorial mindset, nativist obsession, and the tendency to manufacture self-serving facts to promote an agenda. Trump’s fantasy that the Mexican government is shipping rapists and its worst criminals to America is like an example that could have been written about by Hofstadter if he were alive today.

The horrible problem with immigration internationally right now shows the need for an American response to the problem that is both rational and compassionate. In 2015, it is sad to see a major American political party, oblivious to our history, going down such a dark direction.