What Part of “Legal” Don’t You Understand?

Author: on 01/05/2011


The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?

 

It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.

 

***

 

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

These chilling words, authored in 1857 by Chief Justice Charles B. Taney, are the foundation of the infamous Dred Scott decision that led to adoption of the Fourteenth Amendment including the following “Citizenship Clause”:

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.

Directly overruling Dred Scott and codifying the common law concept of birthright citizenship, the Fourteenth Amendment forms the cornerstone of American civil rights by ensuring due process and equal protection under the law to all persons.

Thus, it is nothing less than shocking that today, after more than 150 years, during which time Americans have fought and died for the right to be free from slavery, discrimination, and other forms of degrading and inhumane treatment, we bear witness to a brazen attack on our Constitution’s guarantee of citizenship.  In what the New York Times has described as an “unusual coordinated effort” perhaps as many as 14 states plan to celebrate the convening of the 112th Congress by introducing a “model” bill aimed at stripping citizenship from the children of immigrants, documented and undocumented alike.

What is not surprising, however, is that the same individuals responsible for drafting Arizona’s infamous SB 1070 “Show Me Your Papers” law and other now discredited anti-immigrant ordinances around the country, are taking aim at the Fourteenth Amendment.  Those who strive to turn the clock back to 1867, when Dred Scott was the law of the land, have yet to cite a single credible study or report supporting their ill-advised position that evisceration of the Citizenship Clause will solve any particular problem associated with our badly broken immigration system.  Nor do they bother to explain exactly what problem it is they intend to fix.

Does giving birth in the U.S. give a legal or illegal immigrant mother or father immediate U.S. citizenship or green card status?  No.  Parenting a U.S. citizen child confers no right to be in the U.S. whatsoever.  Just ask our friends at the Immigration and Customs Enforcement who forcibly deport parents of U.S. citizen children day in and day out.

Does giving birth in the U.S. entitle an immigrant parent to citizenship in the future?  Maybe, but only after 40 years! Here is how: to sponsor an illegal immigrant parent a U.S. citizen child must be 21; assuming approval of the requisite family-based petition, the intending immigrant parent must depart the U.S. to be admitted as a permanent resident.  Since the parent’s prior unlawful presence upon departure triggers a 10- year bar to returning, absent a waiver,  the illegal parent’s grand plan to obtain U.S. citizenship by “anchoring” or “dropping” a baby in the U.S. typically takes, at minimum, the better part of a half century.

Are opponents of constitutional citizenship really concerned about purported hordes of women coming over the border to give birth so they can wait 40 years for U.S. citizenship?  The notion is patently absurd.  Yet the attack on the Fourteenth Amendment is instructive to students of the current immigration debate.  It tells us something about the real motives behind the restrictionist movement in the U.S.  For years the mantra of anti-immigrant groups such as FAIR, the Center for Immigration Studies, or NumbersUSA has been captured in slogans such as “What Part of Illegal Don’t You Understand” or “Illegal Means Illegal.”  The subtext?  These groups would have you believe they stand for law and order; it is not immigration they oppose, but rather those who choose to disregard the law.

Birthright citizenship is enshrined in the Constitution.  It could not be more legal.  It would seem logical, therefore, that restrictionists and nativists would embrace the Fourteenth Amendment as part of their unwavering commitment to the rule of law.  Their current effort to eliminate or “reinterpret” the Citizenship Clause offers a window into their true versus claimed motivation, namely, to stop immigration, particularly Latino immigration, even at the cost of abridging civil rights and returning our nation to the days of Dred Scott when people were viewed as commodities to be bought and sold and abused for a price.

The Citizenship Clause of the Fourteenth Amendment has very little to do with immigration, it is fundamentally focused on the preservation of civil rights.  And rather than challenge a Constitutional provision that reversed a notorious Supreme Court decision, the effect of which was to dehumanize and deprive African Americans of U.S. citizenship, politicians at all levels of state and federal government would better serve this nation by devoting their precious time and tax payer dollars to fixing our broken immigration system.

With their newly minted attack on the Fourteenth Amendment, the restrictionist movement seeks to bring the immigration debate to a new low, ignoring the profound danger associated with doing so. Through their willingness to eliminate fundamental Constitutional protections, they reveal that their complaint is not about illegal immigration but America as we know it.  Perhaps we should thank them for highlighting the real issue:  like it or not, we are embroiled in a struggle for human rights and reclaiming America’s soul.  Our battlefield is the broken immigration system and it is in that context we are challenged to define our essence as individuals, as a people, as a culture, and as a nation.  We must grapple with where we have been and where we want to go.  What kind of a country do we want to be?  Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict out of ignorance and xenophobia critical opportunities for engineers, entrepreneurs, researchers and scientists?  Do we want to be a nation that values equality and fairness or one that turns back to the days of Dred Scott?

I know which nation I want.

6 Comments

  1. [...] This post was mentioned on Twitter by David Leopold. David Leopold said: What part of "legal" don't you understand? The restrictionist attack on civil rights. http://bit.ly/e3oULi #immigrationreform #immigration [...]

  2. LetsBeReasonable says:

    [Does giving birth in the U.S. entitle an immigrant parent to citizenship in the future? Maybe, but only after 40 years! Here is how: to sponsor an illegal immigrant parent a U.S. citizen child must be 21; assuming approval of the requisite family-based petition, the intending immigrant parent must depart the U.S. to be admitted as a permanent resident. Since the parent’s prior unlawful presence upon departure triggers a 10- year bar to returning, absent a waiver, the illegal parent’s grand plan to obtain U.S. citizenship by “anchoring” or “dropping” a baby in the U.S. typically takes, at minimum, the better part of a half century.]

    Mr. Leopold,
    While I whole-heartedly share your opinion that there should be no change to birthright citizenship, I must comment on your explanation (quoted above) concerning how the “math” works. Using your figures, I just don’t see how this adds up to 41 years.

    If an EWI gives birth in the USA, 21 years later that U.S. citizen offspring could file an “immediate relative” petition for the parent. If as you suggest, the parent never left the USA, then the parent would be facing a 10-year ban before that parent could obtain an immigrant visa. That is only a total of 31 years, not 40. Granted, the I-130 might take up to one year to make it through the service center, the NVC and make its way to the Consulate, but 31 or 32 years is hardly 40 years or “the better part of a half century”.

    You seem to suggest that the EWI parent would actually depart the USA to take the risk of either 1) winning a waiver of the 10 year ban, or 2) actually deciding to depart and go through the 10 year ban. I doubt many EWI parents in that situation will do as you suggest.

    I believe it is much more likely that the EWI parent plans to live in the USA whether or not the parent ever achieves legal status (wasn’t that the decision the parent made in the first place?), and I further believe that “if” you had one of these unlikely EWI parents who actually did depart the USA to try to win the waiver of the 10 year ban, do you honestly believe for one second that the parent won’t just EWI back into the USA if that waiver is denied? After all, that parent has a “child” in the USA (a familial “anchor” if you will).

    An EWI parent might simply take her U.S. citizen child back to Mexico and live life there as that child grows up. When the child reaches 21, bingo. Or perhaps that EWI parent will decide to return to Mexico when the child turns 11. Ten years later, bingo.
    My point is that 21 or 22 years is hardly 40 years or the better part of a half-century.

    Except for the geographic reality, I’m not sure why the focus always seems to be on our wonderful law abiding neighbors to the south. Try doing a search using the terms, “Chinese birth tourism” and see what you find.

    These parents lawfully enter the USA using a visa, give birth (and pay a few thousand dollars for their outstanding medical care that they receive) and then they fly back to China with their freshly minted U.S. Citizen child in tow. That child grows up in China and has nothing whatsoever to do with America. But when that child reaches 21…. Bingo!

    I suppose there is nothing wrong with the concept that U.S. citizenship is being basically put up for sale (the cost of an airline ticket and a hospital stay). We have the investor visa, which is basically another way to “buy” yourself a life in the USA, although those participants require a much higher monetary investment and must create a certain number of jobs. But OK, the “birth tourist” parent did spend a few bucks, so why not leave things the way they are and let’s bring back that child who has never spent a year in the USA over along with the parents (and maybe even a spouse for good measure). They earned it.

    So while I agree with you that birthright citizenship should not be abolished, and I see your point that simply having a U.S. citizen child does not immediately grant a status to the parent, I just don’t understand your 40 year calculation and I believe there is a flip side to the birthright citizenship coin.

    Come on… let’s be reasonable.

  3. Donna Esq. says:

    Regardless of the math, monkeying with the Constitution to keep parents from having the ability to be sponsored 21 years in the future is pretty ridiculous.

    In the scenario given by LetsBeReasonable (do let’s), yes, a child of the Chinese parents might be able to sponsor them in 21 years. However, the child would also have to file an Affidavit of Support. Kind of hard to do unless s/he’s making some pretty decent money, and if that’s the case, what’s so bad about the parents coming here?

    Bear in mind however that the child cannot pass on his/her citizenship to his/her own children unless s/he meets the necessary residency requirements, which can be found in the regulations. Further, since the parents are immediate relatives, their other dependents would not be included as derivatives, so would not be able to immigrate until years after the parents did.

    In sum, then, having a child in the U.S. is about the slowest way possible to get a “green card,” and it would only allow the parents (if they’re still alive after 21 years) to immigrate. And that’s not reason enough to mess with the Constitution.

    So let’s look at the facts, and be reasonable in acting on reason, not bigotry and hate.

  4. LetsBeReasonable says:

    I am in agreement with you, and with Mr. Leopold in that I don’t want to see any change to birthright citizenship, but I believe it is a disservice to our cause to spin unrealistic scenarios in order to persuade the non-educated (those who don’t know much about immigration law) in order to sway them to our side. It is akin to passing off phony research in order to win an argument.

    One faulty premise I see with Mr. Leopold’s argument is that he seems to be saying that the ultimate goal of the typical EWI parent is… “the illegal parent’s grand plan to obtain U.S. citizenship by “anchoring” or “dropping” a baby in the U.S.” He then goes on to say how ridiculous this notion is due to the fact that it would take 40 years in order to achieve that goal (he uses an EWI parent example with a 10 year ban….and never even brings up the birth tourist situation where there would be no ban whatsoever).

    I respectfully submit that (with the typical EWI situation) this is not the grand plan at all (of course, it would be nice if U.S. citizenship were obtained, but that is not the end goal). I believe the end goal (for those with fortunate geographic proximity to the USA) is to simply live here in the USA, regardless of the fact that they do not qualify to immigrate. And I don’t believe they have U.S. citizen offspring just so the parents can perhaps become permanent residents or U.S. citizens one day. They have children because that is what people do… and it is certainly nice that these kids are U.S. citizens as it 1) gives them a better future (which I believe most parents want for their children) and 2) is one less thing to worry about (the parent might have to worry about their own EWI status but the child does not have that problem and is thus one less potential problem for the EWI parent to worry about).

    Now of course, having a U.S. citizen child becomes a useful tool to gain sympathy for the EWI parent (plus a useful tool if trying to win a waiver of a 10 year ban), and it also is a compelling force that would drive the parent to re-EWI into the USA. Mr. Leopold’s article did not address any of these “real world” scenarios.

    Mr. Leopold scoffs at reevaluating birthright citizenship due to the 40-year timeline, but remains completely silent on where those 40 years are spent. The parent is not separated from the child for 40 years, nor is the parent separated from the USA for 40 years.

    I seriously doubt many EWI parents of Mexican origin will depart the USA in order to serve their 10-year ban or attempt to win a waiver of the 10-year ban, but for those parents who “do” depart and who successful obtain the waiver, they would be out of the USA for a matter of months. Again, this is a far cry from the 40-year estimate Mr. Leopold uses to justify his position that because the time frame is so long (the faulty premise that the ultimate goal is for that EWI parent to become a U.S. citizen), this forms no justification for changing birthright citizenship.

    Now for the Chinese birth tourist situation, you are correct that the adult U.S. citizen (who was born in the USA and immediately taken back to China) would have to move to the USA and get a job and file the I-864. You are also correct that any siblings of that U.S. citizen child (if the parents didn’t also come over as birth tourists for those siblings) would fall under the preference visa system (so there actually “is” a way for them to come, but not as immediate relatives so it will take much longer for the siblings). You are also correct in that if the U.S. citizen adult (the child born in the USA and immediately taken back to China) “never” comes back to live in the USA, he (or she) won’t pass along citizenship to his (or her) children (which then means this is a “non-issue” when it comes to birthright citizenship concerns).

    If that now adult U.S. citizen actually does move here and makes enough income to sponsor his parents, I share your opinion of ”what’s wrong with that”? There is nothing wrong with that…. But again it is a far cry from 40 years or the best part of a half-century.

    I see nothing wrong with someone moving to the USA even though they never lived here prior (there is no need for them to begin their assimilation prior to their arrival as adults….. happens all the time in the world of immigration). And I suppose it is also fine that they bring over their old parents who also have never worked in the USA, never contributed to the tax coffers (except for that airline ticket and hospital stay 21 years earlier), never paid into Social Security, etc. The guy is a U.S. citizen because he was born here, and he has every right to bring over his parents, a spouse, his children and his siblings (but I acknowledge that the siblings have a much longer wait time due to the preference visa system).

    Maybe you know the answer to this one (I don’t and I’m curious how this works). What about registration for selective service? Would that child who was born in the USA but who was taken back to China have any obligation to register for selective service (if he’s still in China at the time the requirement kicks in)? Again, I’m not sure and I’m just wondering how that works.

    And of course, don’t let my use of Mexico and China be misunderstood. The reality of birth tourism applies to people from every country (not just China), and I suppose it would be even easier to accomplish for those from visa waiver countries.

    So to recap, I am in total agreement with both you and Mr. Leopold that there should be no change in birthright citizenship, but I disagree in the way he chose to persuade others about his position. I think a better approach is to acknowledge the realities of birthright citizenship (both the pros and cons… and if any cons warrant it, offer suggestions to slightly tweak the system to eliminate those concerns) but at the same time also stressing how immigration is a proud and important tradition in our country. To put it bluntly… that keeping birthright citizenship is the right thing to do for our nation (and give reasons why it should be maintained, not take the negative approach with the usual taunts of racism and xenophobia for those who disagree).

    Come on…. let’s be reasonable in the way we choose to persuade others.

  5. Donna Esq. says:

    You make some good points, and I agree that it is important to put forth positive reasons for keeping the Constitution intact. I think Mr. Leopold has done so (“The Citizenship Clause of the Fourteenth Amendment has very little to do with immigration, it is fundamentally focused on the preservation of civil rights. And rather than challenge a Constitutional provision that reversed a notorious Supreme Court decision, the effect of which was to dehumanize and deprive African Americans of U.S. citizenship, politicians at all levels of state and federal government would better serve this nation by devoting their precious time and tax payer dollars to fixing our broken immigration system.”).

    But whether it takes parents 21 years, or 31 years, or 40 years, to immigrate after having a native-born U.S. citizen child is really not the point. The point is that the people going after the 14th Amendment are doing so for reasons based in bigotry. And I agree with Mr. Leopold on this point, and I think it is important to call things what they are.
    There are a lot of people who have little knowledge of the immigration system or its history in this country, who can be persuaded by the “reasonable” arguments set forth by the haters, and it is important to expose the haters’ motives.

    Unless we want this country to degenerate into a really ugly place where bigotry and hate reign supreme (as apparently has happened in Arizona) we need to all stand up and stand together.