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Two Wongs Don’t Make a Right
Takimag
Two Wongs Don’t Make a Right
The legal basis for “birthright citizenship” is tenuous at best, nigh nonexistent at worst.
TakiMag
President Donald Trump’s executive order denying citizenship to “anchor babies” has caused quite a stir. The media insist that kids born to illegal aliens on U.S. soil are automatic citizens at birth. Although asserted with smug arrogance, they then bury any discussion of the issue in lies.
Thus, for example, the entire media claim that Trump’s order is about “birthright citizenship.” That’s rather circular. The precise question at issue is whether kids born to illegals are citizens by right. It would be like calling a case about transgenders a “women’s rights” case.
In fact, for nearly a century, no one disputed that “birthright citizenship” referred exclusively to the citizenship of children born on U.S. soil to citizens and legal immigrants—not including tourists, diplomats, or others in the country temporarily. No court has ever held otherwise.
But the New York Times neurotically insists that anchor babies’ citizenship is “well-established through the 14th Amendment and nearly 130 years of case law.” The Newspaper of Record is lying about the record.
Actually, the idea that babies of illegals have won the citizen jackpot was invented by Associate Justice William Brennan in 1982 and inserted as dicta—i.e., idle chitchat, not part of the court’s ruling—in a footnote. He cited no law, no constitutional provision, and no court holding.
There’s your “well-established” doctrine that anchor babies are citizens—Doctor Demento’s crayon scribbling on the Constitution in the 1980s.
The legendary “130 years of case law” said to establish the citizenship of anchor babies refers to an 1898 case, U.S. v. Wong Kim Ark, that took the 14th Amendment’s guarantee of citizenship to freed slaves and gave it to a child of legal immigrants.
Manifestly, the opinion in Wong had nothing to do with illegal immigrants. Otherwise, Brennan wouldn’t have had to announce his personal opinion in 1982 that children born to illegals should be treated as citizens. It would already have been the law.
The Wong court never expressly refers to legal or illegal immigrants at all. The concept would have been incomprehensible in 1898. From 1620 to 1920, pretty much anybody could come to America—although in the late 19th century, we began excluding the diseased, the criminal, and the feeble-minded. (Probably why Brennan had such a soft spot for illegals.)
There was no social safety net, so if you couldn’t make it, you went home. Until we began plunging immigrants into the warm bath of government handouts, about half of all immigrants didn’t stay. No deportations necessary: They left the same way they came.
It wasn’t until the 1960s that three major innovations conspired to wreck our country: 1) the rise of the welfare state; 2) television; and 3) international air travel. Suddenly, every poor person on Earth was showing up, uninvited, and demanding that we support them for life.
The ruling in Wong does not require that we make their kids citizens. That case merely held that a Chinese man born to parents living in the U.S. as “permanent domiciled residents” was a citizen. Solicitor General John Sauer argued that the court’s repeated references to Kim Ark’s parents being “permanently domiciled” in the U.S. meant they were in the country legally.
Justice Neil Gorsuch objected, saying that “you don’t see domicile mentioned in the debates” over the 14th Amendment.
Of course not! That amendment was about freed slaves.
The framers might have made that point with greater clarity, except our Constitution intentionally avoids referring to race or slavery, out of embarrassment. Instead, the framers used convoluted euphemisms, like “free Persons” and “all other Persons” or “Person held to Service or Labour.”
Even the post–Civil War amendments—despite being all about slaves and slavery—go out of their way to minimize the subject, by, for example, guaranteeing “equal protection” to “any person within [a state’s] jurisdiction.”
That’s the reason for the 14th Amendment’s strange locution: “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.”
The odd phraseology wasn’t an IED meant to blow up in the country’s face a century later. The framers were expressing their discomfort with the “peculiar institution” that had been demanded by plantation owners in need of cheap labor. (Because otherwise “the crops would rot in the field”!)
A few of the media’s other favorite moments from the oral argument were Associate Justice Amy Coney Barrett’s retort to Sauer, “Yeah, yeah, yeah, yeah—but what about the Constitution?” and Chief Justice Roberts’ remark, “It’s a new world. It’s the same Constitution.”
If the justices are so concerned with the meaning of the Constitution, the only possible conclusion is that the 14th Amendment doesn’t have anything to do with immigrants at all. It’s about freed slaves. Wong was wrong and should be overruled. And if they won’t say that, then maybe drop the sanctimony about being legal purists doing straight constitutional interpretation.
Wong may be contrary to the 14th Amendment’s history and precedent, but that doesn’t mean it flung open the door and gave automatic citizenship to just anyone. Unlike anchor babies, Wong’s parents were not in the country illegally, and his citizenship was the only issue decided by the court.
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