Attack on Birthright Citizenship is Not About the Law

Don't play politics with me.
Don't play politics with me.

The House Judiciary Committee held hearings yesterday attacking birthright citizenship. Birthright citizenship means, simply, that with very few exceptions, children born in the United States are U.S. citizens at birth. Anti-immigrant congresspeople, like Steve King, claim that they want to change this tradition and bar the children of undocumented immigrants from citizenship. They are right when they say that the Founding Fathers did not want everyone born here to “automatically” become a citizen.

Birthright citizenship it was not a custom or tradition at the time of the Revolution or during the early 1800s. Only certain children born in the United States were considered citizens before the Civil War.

Children born to African slaves and their descendants in the United States, for example, were not American citizens until after the Civil War. The Supreme Court decided in the Dred Scott decision that even in “free” states, African Americans were not United States citizens:

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.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

The notion, central to the Dred Scott decision, that a black man had “no rights which the white man was bound to respect” was an article of law that helped lead to the Civil War. And bound up in that doctrine was the rule that a child’s citizenship depended on his or her parents’ legal status.

So when did the “practice” (as Congressman Steve King would phrase it) of granting citizenship at birth come about? We look to post-Civil War history for its origins.

And we find that birthright citizenship is neither a “custom” nor a “practice”—it is a Constitutional right.

A right created by the 14th Amendment.

The 14th Amendment was ratified in 1868 to put an end to practices in many states in which African Americans were freed from legal bondage, but denied citizenship. State laws often held that freed slaves were not citizens, nor were their children. In other words, that conditions of prior servitude made them ineligible for citizenship.

When Steve King and his allies go after brithright citizenship, they are really calling for repealing a crucial part of the 14th Amendment. This can only be done through a Constitutional Amendment, which is a long and arduous process. It will never happen. So why, we should ask, is this hearing even taking place?

For reasons of politics and not law.

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