Born in the U.S.A.: The Lessons of the 14th Amendment and Wong Kim Ark

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    • 00:00

      [MUSIC PLAYING]

    • 00:12

      ROBERT KOULISH: Hello.My name is Robert Koulish.I'm the Joel J. Feller research associate professorat the University of Maryland and director of MLAW programs.The name of our lesson today, our case study,is Born in the USA-- Lessons on Birthplace Citizenshipfrom Wong Kim Ark.

    • 00:32

      ROBERT KOULISH [continued]: Immigration and naturalization is one of my specialties.And I look forward to working with you todayto help introduce you to a very, very importantand under-studied topic.[Introduction]Birthplace citizenship is a pretty good case study,

    • 00:55

      ROBERT KOULISH [continued]: in large part because I think it'sa lens into the larger discussion of immigrationpolitics and law, specifically controversyover neutral and quintessentiallyAmerican birthplace citizenship, where efforts that reform,removing, or making changes in birthplace citizenshipfor some has deep racial overtones.

    • 01:17

      ROBERT KOULISH [continued]: Recommendations for reform, both 100 years ago and more recentlytoday, must overcome the assumptionthat they are discriminating against natural-born childrenof color and their mothers.For example, the idea of anchor babies, whichis being largely discussed in the American polity in the year2015 leading into 2016, quite frankly, it's a canard.

    • 01:42

      ROBERT KOULISH [continued]: What that means is anchor babies is a social construction.Anchor babies is a right wing social construction.It's aimed at dehumanizing people of colorin the United States.Let me give you an example.The idea of an anchor baby is that somehowa natural-born baby is going to serveas the anchor for their mother to gain citizenship

    • 02:04

      ROBERT KOULISH [continued]: into the United States.It's simply not the case.US-born child of an undocumented immigrant cannot petitionfor their parent for 21 years.And if their parent happens to be an undocumented immigrant,and that's the target of the discussion of anchor babies,it may take-- particularly if that parent werehere for another year in the United States, at least

    • 02:26

      ROBERT KOULISH [continued]: one year-- it would take another 10 years.So it would be a total of 31 yearsbefore the natural-born child could petitionfor their mother, or their mother and father,to become a citizen of the United States,to gain legal status.Similarly, there's an issue a birth tourism.And birth tourism affects mostly Chinese immigrants.

    • 02:48

      ROBERT KOULISH [continued]: And it's used in disparaging ways and pejorative ways.And it deals with US-born motherswho are here in this country on tourist visaswho happen to give birth to childrenborn in the United States who happen to be US citizens.[What is birthplace citizenship?]

    • 03:09

      ROBERT KOULISH [continued]: So to move on, what is birthplace citizenship?What's the issue that we're talking about?Here it is in three words-- location, location, location.If you were born in the territorial United States,you are a US citizen.It's really as easy as that.This comes from the common law conceptof jus soli, right of the land.

    • 03:31

      ROBERT KOULISH [continued]: This is the principle of acquisitionof nationality at birth; right of the land,right of the ground.It does not matter where your parents were bornor where they are, with some exceptions, as we'llgo into more detail-- ambassadors, childrenborn of invading armies, American Indians before 1924.

    • 03:54

      ROBERT KOULISH [continued]: Everyone else is a US citizen.[Why birthplace citizenship?]So why birthplace citizenship?Well, this is a quintessentially American idea.American identity, or idea of whatit means to be an American, is rooted in ideas--

    • 04:14

      ROBERT KOULISH [continued]: not privilege, not royalty, not lineage, not bloodline.These are concepts that are advanced by another aspectof citizenship called jus sanguinis.Now jus sanguinis exists in the United States,but it's secondary to jus soli.Jus sanguinis means citizenship by appeals to inheritance.

    • 04:36

      ROBERT KOULISH [continued]: Birthplace citizenship, jus soli,has nothing to do with inheritance and nothingto do with who your father was.Rather, it applies equally to all personsborn in the United States-- a clean slate for all.The controversy-- birthplace citizenship was a corrective

    • 04:57

      ROBERT KOULISH [continued]: to, one--[The Controversy]--ineriting citizenship privilege from one's parents.[Structural racism resulting from slavery]And two-- structural racism and efforts at reformmust address this legacy.[Racist xenophobia of Chinese exclusion]In a moment, I'm going to addresswhat we mean when we're talking about structural racism.Structural racism is the result of slavery and the Dred Scott

    • 05:17

      ROBERT KOULISH [continued]: decision.We'll get to that in a moment.The second part is that criticismof birthplace citizenship has to dowith racist xenophobia, Chinese exclusion, rootedin the Chinese Exclusion Act.[Dred Scott-- 1857]

    • 05:38

      ROBERT KOULISH [continued]: OK.Let's discuss very briefly Dred Scott v Sandford, 1857.What they did, clean and simple, isremove birth citizenship, jus soli, for peopleon account of race.African Americans couldn't be citizens.In Dred Scott, the Supreme Court held that, I quote,"A negro, whose ancestors were imported into this country

    • 05:59

      ROBERT KOULISH [continued]: and sold as slaves was not intended to be included under,the word 'citizens' in the Constitutionand can therefore claim none of the rights and privileges whichthat instrument provides for and secures to citizensof the United States."Dred Scott versus Sandford, 1857.

    • 06:20

      ROBERT KOULISH [continued]: From that time on and through the Civil War,slaves and then the descendants of slaveswere unable to become citizens of the United States.This was corrected in the Civil Rights Act of 1866after the end of the Civil War where

    • 06:42

      ROBERT KOULISH [continued]: Congress attempted to repudiate Dred Scott in this act.And this is what it said."All persons born in the United Statesand not subject to any foreign power, excluding Indiansnot taxed, are hereby declared to becitizens of the United States."But the issue here is that since itwas Congress that made this act, giving citizenship

    • 07:08

      ROBERT KOULISH [continued]: to all people born in this country,a future Congress could revoke that, which made citizenshipfor African Americans dependent upon the political whimsof the day.And it was thought that something stronger was needed.And so along came the Citizenship Clause

    • 07:28

      ROBERT KOULISH [continued]: of the 14th Amendment to the Constitutionof the United States.Citizenship Clause was authored by Senator Jacob Howard.And he explained, quote "It settles the great questionof birthplace citizenship and removes all doubtas to what persons are or are not citizens of the UnitedStates."The 14th Amendment Citizenship Clause says the following.

    • 07:53

      ROBERT KOULISH [continued]: As you'll notice it's very similar to the Civil RightsAct, but a little different as well.It says "All persons born or naturalizedin the United States, and subject to the jurisdictionthereof, are citizens of the United Statesand of the state wherein they reside."The words here are clear.Key to the decision and key to the controversy

    • 08:16

      ROBERT KOULISH [continued]: over the decision that people drew on 100 years agoand they continue to draw on today dealswith one phrase within the Citizenship Clause.And that one phrase says the following--"subject to the jurisdiction thereof."So the question is, what does this mean,subject to the jurisdiction thereof.

    • 08:38

      ROBERT KOULISH [continued]: What it means is owing direct and immediate allegiancefor purposes of being subject to the rules of jus soli.This means that if you're in the United States,you're born in the United States,you're subject to the jurisdiction of the lawswithin the United States.It's as easy as that, with some exceptions.[Exemptions]Children born to ambassadors, to diplomats.

    • 09:00

      ROBERT KOULISH [continued]: [Children born to diplomats]They are here in an official capacityof another foreign government.They are an exception, because theyare seen as following the sovereign law of the governmentthey represent.[Children born to those in invading army]Children that were born to those in an invading army cominginto the United States, referred to as enemy aliens,

    • 09:21

      ROBERT KOULISH [continued]: they are another exceptions.They're not subject to the laws of the United Statesbecause they could be seen as trying to overthrow those laws.And from 1884 until 1924 in the case Elk v Wilkinswe saw the court reinterpret the Citizenship Clause,the 14th Amendment, which suggested

    • 09:43

      ROBERT KOULISH [continued]: that "subject to the jurisdiction thereof"could also exclude American Indians--[From 1884 1924-- Native Americans]--as not subject to the jurisdiction of US lawsbecause they were subject to the direct allegianceto their tribes on reservations that had treaties to the UnitedStates.They were directly reliant upon tribes

    • 10:04

      ROBERT KOULISH [continued]: within the United States and not the federal government.The federal government recognized these rightsthrough treaties with these Indian tribes.One of the things we need to look atis that when we're talking to "subject to the jurisdictionthereof" we're talking about also that you're

    • 10:25

      ROBERT KOULISH [continued]: subject to the jurisdiction thereof of laws in the UnitedStates for purposes of representation and taxation.American Indians during this timewere not subject to representation and taxationwithin the United States, as theywere subject to the jurisdiction of their Indian tribes.["Subject to Jurisdiction"]

    • 10:51

      ROBERT KOULISH [continued]: So we want to look for a moment a little closerat what it means to be subject to the jurisdictionthereof for purposes of representation and taxation.So I would like to go into a little bit more detailon what this means.The key here is that when you're subject to the jurisdictionthereof for purposes of representation and taxation,

    • 11:15

      ROBERT KOULISH [continued]: it's not a question of whether you actually pay taxes.It's a question of whether you were countedby the US government for purposesof representation and taxation.What does this mean?It means that you're counted for purposes of the census.For such purposes the census counts all personsin residential structures throughout the United States.

    • 11:38

      ROBERT KOULISH [continued]: These are the people that are counted for purposesof representation and taxation.In 2010 census, undocumented immigrants were countedand they counted for 3.7% of the populationand 5.2% of the labor force within the United States.

    • 11:59

      ROBERT KOULISH [continued]: This census is used by Congress to distribute $400 trillionannually to state, local, and tribal governments.It's in the incentive of states and local governmentsto want undocumented immigrants, or anyone born in this country,to count, to be counted by the census,to be counted for purposes of representation,

    • 12:21

      ROBERT KOULISH [continued]: to be counted for purposes of taxation.The more people you have in your district, the more money you'regoing to get from the federal government and the morerepresentatives you're going to getto represent your state within the House of Representatives.And yet still, it's a lightning rodfor opponents who misinterpret this key part

    • 12:41

      ROBERT KOULISH [continued]: of the definition.So what are the takeaways?The takeaways--[Takeaways]--is that slaves and descendants of slaves born in the UnitedStates have full rights of citizenship at birth,as does everyone else.[Slaves and descendants of slavesborn in the United States have citizenship at birth]Birthplace citizenship is a corrective to racial exclusionthat existed in the United States

    • 13:02

      ROBERT KOULISH [continued]: from 1857 through the Civil War.[Birthplace citizenship is a corrective to racial exclusion]Hence, attempts seen in both the 1980s and now in 2015 and 2016,attempts to change the citizenship clause,must be seen through the lens of race.[Anti-Chinese Xenophobia]

    • 13:25

      ROBERT KOULISH [continued]: Next, a brief discussion of anti-Chinese xenophobia.What's xenophobia?Xenophobia is the irrational dislikeof people from other countries.[Xenophobia-- The irrational dislikeof people from other countries]The Chinese Exclusion Act of 1882proposed a 10-year ban on the entry for Chinese laborers.This provision within the act wasrenewed several times and then indefinitely in 1904

    • 13:46

      ROBERT KOULISH [continued]: until 1943.During this time, as a result of the Chinese Exclusion Act,it was also against the law for Chinese residentswithin this country to naturalizeand to become US citizens.[United States v. Wong Kim Ark-- 1898]This brings us to the US v Wong Kim Ark in 1898.

    • 14:09

      ROBERT KOULISH [continued]: Very, very briefly, the facts of the case.It connects anti-Chinese xenophobiawith racism leading to the Citizenship Clause itself.The context-- anti-Chinese xenophobia as a result,in part, to the economic depressionof 1873, the arson and violence whichmade it very, very difficult for Chinese communities to flourish

    • 14:33

      ROBERT KOULISH [continued]: and thrive-- even to engage in business or even to survive.Many Chinese during this period of timedecided to leave their communitiesand to go back to China.It was during this time that Wong Kim Arkwas born in San Francisco to Chinese parents.He grew up in the United States, went back to China

    • 14:54

      ROBERT KOULISH [continued]: two or three times with his parents.The last time he went back to Chinawas in 1895-- his papers were in order.Under the Chinese Exclusion Act you needed a white witnessin order to document his status as a citizen in the UnitedStates, which he had.All the papers were ready to go.

    • 15:16

      ROBERT KOULISH [continued]: And yet, when he returned in 1895to the port in San Francisco, custom officialsstopped Wang Kim Ark from reentering the United States,even though he was a natural-born citizenof the United States.He was held aboard a shipping vessel for four monthsas the government appealed his case to the Supreme Court.

    • 15:38

      ROBERT KOULISH [continued]: They appealed to the Supreme Courtin order to use Wang Kim Ark's case as a test casein order to revise the Citizenship Clauseof the United States of America.The opinion in Wong Kim Ark ruledthat under the 14th Amendment a US-born childof Chinese parents who were themselves barred

    • 16:01

      ROBERT KOULISH [continued]: from ever becoming citizens because the Chinese ExclusionAct was a citizen at birth, period.The case reaffirmed the words of the Citizenship Clauseof the 14th Amendment.And more broadly it held, quote, "To holdthat the 14th Amendment of the Constitutionexcludes from citizenship the children, born in the United

    • 16:23

      ROBERT KOULISH [continued]: States, of citizens or subjects of other countrieswould be to deny citizenship to thousands of personsof English, Scotch, Irish, German,and other European parentage who have alwaysbeen considered and treated as citizens of the United States."So the question is are undocumented immigrants--or anchor babies, as they're pejoratively referred to--

    • 16:46

      ROBERT KOULISH [continued]: are they subject to the jurisdiction thereof?Should they be considered citizens of the United States?[Conclusion]There's nothing in the Citizenship Clausethat it excludes children of undocumented immigrants,nor of temporary migrants, nor of legal permanent residents

    • 17:09

      ROBERT KOULISH [continued]: from being citizens of the United States.There's nothing in the language of the Citizenship Clausenoting an intent of those who authored this clause to excludeundocumented immigrants.There's nothing in the intent by the author of the CitizenshipClause to deny citizenship for children

    • 17:31

      ROBERT KOULISH [continued]: of undocumented immigrants who were born in this country.There's nothing in the reasoning behind the jurisdictionthereof-- think of the census story here--that works against the idea that natural-born childrenof undocumented immigrants are citizens of the United States.

    • 17:52

      ROBERT KOULISH [continued]: Consider the present tense here, whereICE deports undocumented immigrantsand where states and the federal governmentsubject them to criminal laws.Now think what would happen if these people,undocumented immigrants and their children,were not subject to the jurisdictionof the federal law.

    • 18:13

      ROBERT KOULISH [continued]: If they were not subject to the jurisdiction of the federallaw, they cannot be deported by federal law.The only reason why undocumented immigrantscan be deported by US immigration lawsis precisely because they're subject to the jurisdiction

    • 18:34

      ROBERT KOULISH [continued]: thereof.Therefore, legal permanent residents,children of tourists, travelers, and undocumented migrantsare all subject to the jurisdiction of the UnitedStates.It's not a matter of whether individual undocumentedimmigrants pay taxes-- as a matter of fact, they do.It is a matter whether the census

    • 18:54

      ROBERT KOULISH [continued]: counts undocumented population for purposesof representation and taxation.And it does.Undocumented immigrants are indeedsubject of the jurisdiction thereof.This has been settled law since 1885,but it's still a matter of a lot of political controversy.You have people running on platformsto strip children of "illegal aliens" quote unquote

    • 19:18

      ROBERT KOULISH [continued]: or children of undocumented immigrants, other citizenshipstatus, suggesting that children born in this countryto undocumented parents are not subject to the jurisdictionthereof.And again, what's the threshold test?They bear the burden to show that there's not a racist basis

    • 19:38

      ROBERT KOULISH [continued]: to their efforts at trying to revise the Citizenship Clauseof the 14th Amendment.In terms of policy, in 2013, you have the Birthplace CitizenshipAct that was proposed by representative Steve King.In 2015, Senator David Vitter triedto attach a proposal to the Victims of Trafficking

    • 20:00

      ROBERT KOULISH [continued]: Act of 2015 that dealt with trying to place restraintson birthplace citizenship for childrenof undocumented immigrants.So what's the key?The key is that such policy, political acts,or litigation dealing with the context of birthplacecitizenship as seen through the lens of racial discrimination

    • 20:22

      ROBERT KOULISH [continued]: are attempts to exclude and subordinatebecause of race or ethnicity.The lessons of Wong Kim Ark standas a bulwark against efforts to deny membershipon the basis of race.So what are the questions for reflection?[Reflective Questions]How do you square efforts to change Citizenship Clausewith a central feature of the 14th Amendment, whichallows equal protection of law?

    • 20:45

      ROBERT KOULISH [continued]: And two, what would be the legal basisto change the Citizenship Clause of the 14th Amendment asreinforced by precedent and common lawwithout looking at race?What exactly would this change look like?[MUSIC PLAYING]

Born in the U.S.A.: The Lessons of the 14th Amendment and Wong Kim Ark

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Abstract

Dr. Robert Koulish traces the history of birthplace citizenship in the United States. Because American identity is tied to an idea rather than a lineage, the Constitution tied citizenship to the place--with some exclusions. The Dred Scott and Wong Kim Ark decisions established that citizenship could not be stripped on racial grounds.

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Born in the U.S.A.: The Lessons of the 14th Amendment and Wong Kim Ark

Dr. Robert Koulish traces the history of birthplace citizenship in the United States. Because American identity is tied to an idea rather than a lineage, the Constitution tied citizenship to the place--with some exclusions. The Dred Scott and Wong Kim Ark decisions established that citizenship could not be stripped on racial grounds.

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