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Birthright citizenship.

I don't completely agree with Joe Wolverton's analysis of the cases of Wong Kim Ark and Plyler v. Doe in his articles "Automatic Citizenship" (September 13 issue). I don't think either case supports birthright citizenship. I don't think Wong Kim Ark was wrongly decided under the facts of that case.

The court, in Wong Kim Ark, made a special point to show that Wong Kim Ark's parents were lawful residents of the United States when Wong Kim Ark was born. Future, it pointed out, Wong Kim Ark had already made lawful re-entry into the United States before he was detained on his second attempt to re-enter. The Chinese Exclusion Act was passed after his first lawful re-entry and before his second attempted re-entry. In neither case did he try to sneak into the United States.

The historical context of the 14th Amendment was the Dred Scott decision. The Dred Scott decision held that the American-born child of an imported slave did not have the right to claim citizenship in a non-slave state, while he had been considered property and a non-citizen in the state of his origin. Thus, he didn't have the right to asylum in a non-slave state and was compelled to return to his master in the slave state.

The 14th Amendment, once and for all, abrogated the Dred Scott decision. Dred Scott and other already born to foreign parent lawfully residing on U.S. soil, were citizens both of the United States and of the state where they resided. However, it is important to look at the similarities between Dred Scott and Wong Kim Ark. Both were born on American soil to parents who were lawfully residing in the United States at the time of their respective births.

The court, in Wong Kim Ark, made the clear point that birth on U.S. Soil alone does not confer citizenship. It gave the examples of children of diplomats and children of foreign occupiers. Instead, citizenship at birth was linked to the parents' allegiance to the United States. that followed common law principles. A child of an alien or stranger who was just passing through was not considered a citizen at birth in common law. It makes no sense, if the 14th Amendment does not confer birthright citizenship to a child born to a diplomat lawfully admitted to our country or a child born to an enemy occupier, to confer citizenship upon a child born to parents who violated our laws in order to enter our country.

Plyler v. Doe wasn't a birthright citizenship case at all. It dealt with the question of whether children of illegal aliens, whether born in the United States or not, were entitled to a free public education in the state of Texas. The court, using an equal protection argument, said that hey were entitled to equal protection under the 14th Amendment, just as an illegal alien would be entitled to a Fourth Amendment right against a warrantless search and seizure. Plyler v. Doe does not strenthen the birthright citizenship argument.

The United States Code today does provide that children born to illegal aliens on U.S. soil are citizens by birth. It had the right to declare that as a matter of policy under Article 1, Section 8, but it was not compelled to do that under the 14th Amendment of the Constitution under the holding of Wong Kim Ark.

It is true that children born before the repeal of the present section of U.S. Code are entitled to birthright citizenship. To provide otherwise now would be to create an ex post facto law. There are clear reasons, however, for Congress to change that policy. It is absurd to declare children citizens whose parents have no legal right to remain in the country to raise them. that was obviously not the intent of the framers of the 14th Amendment, and it is an absurd policy to continue. Second, it is not reasonable to declare children citizens at birth when the allegiance of the parents to the United States has not been established. Parents who live in the shadows of the law, unlike Wong Kim Ark's parents, and Dred Scott's parents, cannot be assumed to be loyal to the United States. Thus, they are more like people on a diplomatic mission or enemy occupiers.


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Author:Allen, Thomas
Publication:The New American
Article Type:Letter to the editor
Date:Nov 22, 2010
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