Senator Lindsey Graham Threatens Constitutional Right to Birthright Citizenship

By Kevin Vodak

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Republican Senator Lindsey Graham of South Carolina recently proposed abolishing the long-standing constitutional law of birthright citizenship. The law states that any person born in the United States, who is “subject to the jurisdiction thereof,” is a U.S. citizen.

Graham’s remarks were made immediately after a federal court blocked provisions in an Arizona law which would give local police the authority to check a person’s immigration status and require immigrants to prove their legal authorization to be in the country.

If Graham’s comments sound familiar, you may recall law professor John C. Eastman making the same proposal to a House of Representatives subcommittee in 2005 during his presentation, “Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11”.

Graham’s recent attack on the Fourteenth Amendment’s birthright citizenship mandate represents only the latest development in our country’s extensive history of xenophobia.

The Fourteenth Amendment was passed during the Reconstruction Congress’ efforts in the mid-1860s to eliminate the vestiges of slavery, and specifically the Supreme Court’s ruling in Dred Scott v. Sandford that emancipated African-Americans could not become U.S. citizens. The Court’s horrific decision relied upon a Roman social compact theory that the entire country needed to consent for individuals to become citizens. This differed from the birthright theory developed in seventeenth century English common law.
In essence, the Fourteenth Amendment restored birthright citizenship and ensured that the federal government and States could not deny citizenship to anyone who satisfied the Amendment’s definition.
Professor Eastman contends that the clause requiring that individuals be subject to U.S. jurisdiction for birthright citizenship should exclude undocumented immigrants’ offspring, as these immigrants cannot be drafted into the U.S. military or tried for treason. Such twisted logic fails to acknowledge the 1866 congressional debates which rejected this argument.

The “subject to the jurisdiction thereof” clause was meant to apply solely to those who were from families of foreign diplomats (who are granted immunity) or of an invading army (treated as an enemy combatant).
In response to Pennsylvania Senator Edgar Cowan’s attempt to exclude Chinese immigrants populating California and “Gypsies who wander in gangs in [his] State,” other senators confirmed that such individuals’ children born in the U.S. would be granted citizenship pursuant to the Fourteenth Amendment. Cowan even stated that children of German immigrants should be granted citizenship, but those of Asian ancestry should be excluded.

Today’s anti-immigrant rhetoric asserts that undocumented immigrants will be able to obtain legal status and citizenship through their “anchor babies” born in the U.S.

This purported “loophole” remains nothing more than a fallacy, as the strict immigration laws confer no such benefits on those in illegal status. The INA only places no waiting times on granting permanent legal status to immigrant parents of a U.S. citizen who attained 21 years of age, and numerous grounds of inadmissibility prevent this grant of permanent residence (LPR) to those in unlawful status.

An immigrant who entered the U.S. illegally generally can only obtain LPR by staying in the U.S. for less than 6 months and not returning for at least 3 years, an unrealistic scenario when undocumented immigrants make up approximately 5% of the U.S. workforce.

As many legal scholars have commented, the attempt to restrict birthright citizenship represents a return to a caste system, where certain groups are denigrated based on their heritage. See Nicole Newman, Note, Birthright Citizenship: The Fourteenth Amendment’s Continuing Protection Against an American Caste System, 28 B.C. Third World L.J. 437 (2008).

Solving complex problems of immigration and economics cannot be done at expense of the American ideal of equal opportunity – no one born in this country should be viewed as second class.

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One Response to “Senator Lindsey Graham Threatens Constitutional Right to Birthright Citizenship”

  1. Domingo Arong says:

    Without intending disrespect, I think it is the erroneous reading of the phrase “subject to the jurisdiction thereof” that has brought about all the confusion in parsing the citizenship clause. As read judicially, the phrase is viewed merely as a qualifier of the element preceding it, “All persons born or naturalized in the United States” to exclude the “recognized exceptions” to the birthright rule.

    In his sponsorship speech, however, Senator Howard already made it clear that the clause he authored “will not, of course, include” these “exceptions”:

    “This amendment which I have offered … will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers ….” (Cong. Globe, 39th Congress, 1st Session, p. 2890, 2nd, May 30, 1866.)

    So, why would Senator Howard waste six words in all at that to define “exceptions” that are regarded to be “as old as the rule itself”?

    Incidentally, Senator Howard’s remark on the “exceptions” was merely a reiteration of what was discussed a week earlier concerning an amendment Senator Wade proposed that was referred to the Joint Committee on Reconstruction–a proposal that was to become the basis for Senator Howard’s committee report appending the citizenship clause to the opening line in Sec. 1 of what is now the Fourteenth Amendment.

    Senator Wade worded his terse definition of citizenship in this manner:

    “No state shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof.” (2768, 3rd col.)

    And in reply to a question Senator Fessenden posed–“Suppose a person is born here of parents from abroad temporarily in this country”–Senator Wade argued:

    “… in the case of foreign ministers … their children would not be citizens … but … that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. I will let it come under that well-known maxim of the law, de minimis lex non curat, It would make no difference in the result.” (2769, 1st col.)

    The Latin maxim quoted, “de minimis lex non curat,” means: “The law does not concern itself with trifles.”

    A misplaced concern with “trifles” that “could hardly be applicable to more than two or three or four persons” was obviously what Chief Justice Fuller also had in mind, dissenting in U.S. v. Wong Kim Ark (1898):

    “Was there any necessity of excepting them? And, if there were others described by the words, why should the language be construed to exclude them … There was no necessity as to them for the insertion of the words, although they were embraced by them.”

    Besides, if the phrase “and subject to the jurisdiction thereof” as claimed was intended to qualify “All persons born or naturalized in the United States,” why would Senator Howard, enclose the words within a pair of commas?

    And why are the commas omitted in what is similarly viewed as a qualifier—“and not subject to a foreign power”–in the Civil Rights Act of 1866 that the same 39th Congress enacted just two months earlier?

    More importantly, why did Senator Doolittle in his remarks ADD the words “all persons” in quoting the “language” Senator Howard used, “subject to the jurisdiction thereof,” to read “all persons subject to the jurisdiction of the United States”?

    “But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language which he [Senator Howard, the author] uses, ‘all persons subject to the jurisdiction of the United States,’ includes these Indians. I maintain that it does.” (2897, 1st col., 2nd par.)

    By enclosing the phrase, “and subject to the jurisdiction thereof,” between commas, Senator Howard is conveying the intention that the phrase is NOT to be read as a qualifier, but as the SECOND of a COMPOUND subject, joined to the FIRST (“All persons born or naturalized in the United States”) by the conjunction “and.”

    Senator Howard, of course, was faced with the difficulty understandably encountered in crafting, for brevity or style, a “repeated” element in coordinate configuration–in this instance, the words “all persons”–that he would need to employ in conveying his intent in both subjects of the compound.

    Placing the first comma before the coordinator “and” enabled Senator Howard to avail of the grammatical device of an ELLIPTICAL, allowing him to OMIT the REPEATED noun phrase, “all persons,” in the second subject–to be understood rather than to be stated–inferable from the same noun phrase, “All persons,” in the first subject it is joined to by the coordinator “and.”

    In fine, Senator Howard intended the clause to be read as:

    “All persons born or naturalized in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside.”

    Note the other elliptical–the REPEATED second object “citizens” of the linking verb “are”–Senator Howard likewise OMITTED.

    Take note too that this reading Senator Doolittle quoted as “the language” Senator Howard used—“All persons subject to the jurisdiction of the United States” is GENERIC, with no time or territorial constraint, and was evidently intended to apply to persons either AT BIRTH (particularly the children of US citizens born abroad) or AFTER BIRTH (for instance, the naturalization of inhabitants in ceded territory–there were 16 such territories awaiting statehood at that time–who become “subject to the jurisdiction” of the United States at the moment of cession, in line with the author’s intent:

    “This amendment which I have offered … will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

    Senator Howard obviously achieved what he intended, since this still-unrecognized elliptical “subject to the jurisdiction thereof” (from the complete construction “all persons subject to the jurisdiction of the United States”) undoubtedly:

    - “include[s] every other class of persons”
    -“settles the great question of citizenship”
    -“removes all doubt as to what persons are or are not citizens of the United States”

    In fact, overly confident of the all-embracing reach of the clause he crafted, Senator Howard during the debate later added:

    “We desired to put this question of citizenship … beyond the legislative power.”

    But does the current reading of the clause satisfy fully the author’s declared intent to draft a comprehensive definition of what constitutes citizenship of the United States?

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