Like Locusts? Proposals to Eliminate Birthright Citizenship or “Let’s Return to Dred Scott”

http://www.usdoj.gov/olc/deny.tes.31.htm

LEGISLATION DENYING CITIZENSHIP AT BIRTH TO CERTAIN CHILDREN BORN IN THE UNITED STATES

A bill that would deny citizenship to children born in the United
States to certain classes of alien parents is unconstitutional on its face. A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation’s
constitutional history and constitutional traditions. December 13, 1995

STATEMENT BEFORE THE SUBCOMMITTEES ON IMMIGRATION AND CLAIMS AND ON THE CONSTITUTION OF THE HOUSE COMMITTEE ON THE JUDICIARY

Throughout this country’s history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship. The Constitution itself rests on this principle of the common law. (1) As Justice Noah Swayne wrote in one of the first judicial decisions interpreting the Civil Rights Act of 1866, (2) the word “Citizens ‘under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress.’ We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.” (3) When Justice Swayne wrote these words, the nation was only beginning to recover from a great Civil War sparked in no small part by the Supreme Court’s tragically misguided decision in the Dred Scott case. (4) That decision sought to modify the founders’ rule of citizenship by denying American citizenship to a class of persons born within the United States. In response to Dred Scott and to the Civil War, Congress enacted the 1866 Act, and Congress and the States adopted the Fourteenth Amendment in order to place the right to citizenship based on birth within the jurisdiction of the United States beyond question. Any restriction on that right contradicts both the Fourteenth Amendment and the underlying principle that the amendment safeguards.

The several bills and resolutions now before Congress that would deny citizenship to children born in the United States to certain classes of alien parents raise various issues of law and policy. My testimony today will address two points of constitutional law. First, because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution. A bill such as H.R. 1363, 104th Cong. (1995), the “Citizenship Reform Act of 1995,” that purports to deny citizenship by birth to persons born within the jurisdiction of this country is unconstitutional on its face. Second, the proposed constitutional amendments on this topic conflict with basic constitutional principles. To adopt such an amendment would not be technically unlawful, but it would flatly contradict our constitutional history and our constitutional traditions. Affirming the citizenship of African-Americans that Dred Scott had denied, in 1862 President Lincoln’s Attorney General wrote an opinion for the Secretary of the Treasury asserting “[a]s far as I know . . . you and I have no better title to the citizenship which we enjoy than the ‘accident of birth’ — the fact that we happened to be born in the United States.” (5) Today, in 1995, we cannot and should not try to solve the difficult problems illegal
immigration poses by denying citizenship to persons whose claim to be recognized as Americans rests on the same constitutional footing as that of any natural-born citizen. Members of both of your subcommittees have worked vigorously, with the Department of Justice on an evenhanded bipartisan
basis, on legislation and oversight to address these problems.

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KJ