US News & World Report
By Nicole Hemmer
Over the past few weeks, the Republican Party's debate over immigration has advanced from whether border-crossers are rapists and murderers to whether the U.S. should end its practice of birthright citizenship. Donald Trump put the issue front and center when he railed against "anchor babies," calling birthright citizenship "the biggest magnet for illegal immigration." While a number of top GOP candidates — including Sen. Marco Rubio and former Gov. Jeb Bush — denounced Trump's proposal to ban birthright citizenship, plenty of others sided with the reality star-turned-Republican front-runner.
The question of citizenship is of particular importance in the United States. For a people defined not by ethnicity, religion, language or even shared history, civic membership more than anything else defines who is American. As such, citizenship — and the closely related topic of immigration policy — has been sharply contested since the rise of large-scale immigration to the U.S. in the late 19th century. Yet even as lawmakers erected more and more barriers to immigration and naturalized citizenship, they never undid the principle of birthright citizenship, a principle that preserved American pluralism even as nativism flourished. That's because birthright citizenship reflects a core American principle — one Republicans should be eager to defend.
Birthright citizenship (known as jus soli) was not a fixed legal principle in America until 1898, the year the Supreme Court handed down its decision in United States v. Wong Kim Ark. Wong Kim Ark, the son of Chinese immigrants, had been born in San Francisco in 1873. In 1894, he traveled to China; upon returning, he was denied re-entry on the grounds that he was a citizen of China, not the United States. Wong sued, arguing that because he was born on American soil and had never pledged allegiance to a different nation, he was a U.S. citizen by birth.
Wong's case arose in the midst of a rising nativist tide. In 1878, the federal court ruled that Chinese immigrants could not become naturalized citizens, arguing they were unfit for democratic governance. Four years later, Congress passed the Chinese Exclusion Act, which ended all Chinese immigration until 1943. Wong's case was thus vitally important, for it would determine the status of all children born to Chinese immigrants, and was the only way someone of Chinese descent could qualify for American citizenship.
The court determined Wong was indeed a citizen by birth, as were all children born in the U.S. (other than those born to American Indians or non-resident foreigners). To reach this conclusion, the court relied on the 14th Amendment, ratified just five years before Wong was born: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
That clear-cut language safeguarded birthright citizenship at a time when all other routes to citizenship were rapidly constricting. Post-Civil War naturalization laws hinged on the applicant being either white or of African descent. In the 1920s the court held that immigrants from Japan and India did not qualify as "white" and therefore could not become U.S. citizens. Meanwhile, Congress instituted the first immigration quotas in American history, passing a 1924 law that created nation-based limits that favored western European countries and excluded Asia entirely.
Through all this, though, birthright citizenship prevailed. So it was that two-thirds of the people of Japanese descent held in internment camps during World War II were American citizens, despite the bans on Japanese immigration and naturalization. This citizenship mattered: It allowed Fred Korematsu, a U.S. citizen who refused to be interned, to sue the U.S. on the grounds that the internment orders were a violation of his civil liberties.
Korematsu lost his case in an infamous ruling handed down in 1944, Korematsu v. U.S. One of the dissenting justices called internment nothing less than the "legalization of racism" (which, given the reign of Jim Crow in South, was already broadly legal in the United States). In 1988 and again in 1992, Congress voted in favor of reparations to the interned and the government issued a formal apology.
Understanding this history of immigration restriction and civil liberties violations is critical to the current debate over birthright citizenship. Through the most virulent periods of American nativism, eras when immigration was restricted along ethnic and racial lines, when citizens were arrested solely for their racial lineage, when whiteness was held up as a prerequisite for full membership in the body politic — even then, birthright citizenship remained.
It remained because it represents the most optimistic, and most exceptional, component of the American creed: that all people are created equal and thus entitled to equal rights and liberties. By extending that civic equality to every person born on American soil to permanent residents, the United States sets itself apart. Such unconditional jus soli is quite rare these days. Indeed, no European country practices it. No principle expresses American exceptionalism and optimism more fully. Republican candidates thus should be at the vanguard of protecting birthright citizenship, rather than rushing to eliminate it.
This article was originally published in the US News & World Report