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Budisidharta: Birthright citizenship under the 14th Amendment


Within the past six months, the national conversation has shifted from policies addressing the effects of illegal immigration to ideas seeking its prevention. In late April, Arizona’s notorious Senate Bill 1070 was signed into law by its governor. The purpose of those laws was to identify illegal immigrants already in the United States so that federal authorities could take proper actions, deporting them if necessary. In late May, as a preventative measure, President Barack Obama issued orders allowing up to 1,200 National Guard troops to be deployed along the U.S. border with Mexico. In the past two months, however, the debate has shifted to a decades-old idea, still within the memory of many Asian Americans, that attempts both to prevent illegal immigration and limit its consequences.


Sen. Lindsey Graham, R-S.C. is widely credited as the latest source of the proposal to amend the 14th Amendment of the United States Constitution. Specifically, Graham stated that he was considering introducing an amendment to eliminate the “mistake” of birthright citizenship. Birthright citizenship is a reference to the first sentence of Section 1 of the 14th Amendment, which declares “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”He believes illegal immigrants are using birthright citizenship as part of their insultingly-named practices of “drop and leave” and “anchor babies.” These labels refer to allegations that some illegal immigrants enter the United States for the express purpose of birthing a child, so that the child is a de facto U.S. citizen that can later facilitate the parents’ path to citizenship. Senator Graham’s proposal provides a stark reminder to the Asian-American community of the same fear and paranoia directed toward its members in the not-so-distant past.

In 1898, it took a United States Supreme Court decision to confirm the citizenship of Wong Kim Ark. Wong Kim was born in 1873 in San Francisco to parents who were of Chinese descent and subjects of the emperor of China. Wong Kim visited China briefly when he was 17, but returned to the U.S. without any problems. He again visited China when he was 21, but when he returned he was denied permission to land in the U.S. by the customs official. The official cited the 1882 Chinese Exclusion Act which prohibited Chinese laborers from entering the U.S. as the reason for denying entry to Wong Kim. The Supreme Court thoroughly examined English common law and the history of Section 1 of the 14th Amendment before declaring Wong Kim to be a citizen. The Court recognized that the section was originally intended to protect the rights of African Americans. But the Court found broader application when it focused on the first three words of the Section, “All persons born,” finding their meaning was “restricted only by place and jurisdiction, and not by color or race.” The Court concluded that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”

The Court’s ruling was challenged more than four decades later by members of the Native Sons of the Golden West. The Native Sons, as the organization readily admits on their website today, was for a number of decades “heavily dominated by a tone of Anglo-Saxon Americanism that included some exclusionary membership policies.” In 1942, the Native Sons attempted to capitalize on the internment of Japanese-Americans during World War II byattacking those individuals’ right to vote. A member of the Native Sons brought a lawsuit against the Registrar of Voters of the City and County of San Francisco in an attempt to “strike the names of all Japanese from the register of voters on the ground that they are enemy aliens, citizens of Japan, and therefore ineligible to citizenship and the right to vote.”


The Native Sons member admitted that his goal was to get an overruling of the Wong Kim Ark decision. The district court dismissed his suit without addressing his arguments. The dismissal was affirmed by the Ninth Circuit Court of Appeals, and the U.S. Supreme Court refused to hear the case. The Wong Kim decision stood unharmed, as it does today, affirming the citizenship of all persons, regardless of race or color, born in United States and subject to its jurisdiction. But today, as in 1942, the principles underlying the Wong Kim decision are under attack. Like the Native Sons, those seeking to correct the “mistake” in the 14th Amendment pander to the irrational paranoia and prejudice of a sizeable segment of the population.


Thankfully, Graham’s proposed amendment to eliminate birthright citizenship does not appear to be politically feasible. It’s highly unlikely that the amendment could pass the House and Senate by two-thirds vote, and then be affirmed by three-fourths of the states. Even more unlikely is a Constitution Convention, which would have to be called for by the legislatures of two-thirds of the states. Nonetheless, the threat of Senator Graham’s proposal should be taken seriously. It must never be forgotten that only two years after the Supreme Court refused to hear the Native Sons case, it issued its infamous 1944 opinion in Korematsu v. United States upholding the internment of Japanese Americans. Each and every one of the constitutional rights guaranteed to us as citizens, regardless of how obvious or self-evident, must be protected with vigor and vigilance.


Harry Budisidharta is a partner at the Law Firm of Balaban, Claeson & Budisidharta, LLP. He received his bachelor of arts in political science from California State University of Los Angeles, and his Juris Doctor (J.D.) from the University of Colorado Law School. Harry practices in the area of civil and criminal litigation. Harry can be contacted at harry@denverfirm.com.