Dr. Ijaz Ali Chishti
Mr. Trump’s ambitions to do away with “so-called Birthright Citizenship”. He lamented during an interview with Axios on HBO, “we’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits. It’s ridiculous. It’s ridiculous”.
Mr. Trump’s ambitious statement revitalizes the sad memories attached with reviled decision in the matter of Dred Scott v. Sanford case. This case of decided by the Supreme Court of the United States in 1857. In this case plaintiff, a Negro, was slave of Dr. Emerson, a surgeon in the army of the United States. Harriet was female slave of Major Taliaferro. Major Taliaferro sold Harriet as a slave and delivered her unto Dr. Emerson. Pursuant to the consent of the master, Dr. Emerson, the plaintiff and Harriet married in the year 1836. Out of their wedlock Eliza and Lizzie took birth. Later on, Dr. Emerson sold the plaintiff, her wife Harriet and daughters Eliza and Lizzie to Sanford, the defendant. The defendant held them as slave when the matter reached the Circuit Court of the United States for the Missouri District wherein the plaintiff pleaded for himself and his family the title of freedom. In the District Court the plaintiff lost his battle.
Eventually the matter reached the US Supreme Court, where majority decision was delivered by Chief Justice Roger Brooke Taney with seven to two. Remaining two justices, John McLean and Benjamin R. Curtis gave their dissenting opinions. The majority opinion found that “neither the class of person who had been imported as slaves, nor their descendants, whether they has become free or not” were citizen of the United States, therefore, they had not “entitled to sue” in the courts.
Abraham Lincoln during his campaign for the US Senate reviled the Dred Scott decision, especially, in his famous “House Divided” speech in June, 1858. Abraham Lincoln though lost his battle for senatorship but he managed to sit on the coveted chair of US President in 1861 after having elected by the Electoral College in 1860. He issued his famous Emancipation Proclamation on January 1, 1863, ordering and declaring all person held hitherto slaves in designated States as freemen. This freedom to slaves was perpetuated through Thirteenth Amendment in the Constitution.
In July 1868 the Fourteenth Amendment in the US Constitution was adopted. Under Article V of the US Constitution each amendment to the US Constitution stands adopted when it once passed by two-third majority of the both House, ie, the Senate and the House of Representative is ratified by Legislature of three-fourths of the several States. Section 1 of the Fourteenth Amendment reads, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizen of the United States and the State wherein they reside..”.
In March 1898 the US Supreme Court in a landmark judgement, United States v. Wong Kim Ark interpreted the Fourteenth Amendment. Wong Kim Ark took birth in 1873 in the city of San Francisco, State California, from the parents, citizen of China, when they were resident of the United States. In 1890 they all departed for China. In August 1895 Wong Kim left China on the steamship for the United States and applied to the Collector of Customs for permission to land in the United States. The application was denied upon the ground since Wong Kim was not a citizen of the United States therefore under Chinese Exclusion Acts he being persons of the Chinese race is prohibited from coming into the United States.
Thus question before the US Supreme Court was whether a child born in the United States out of parents of Chinese descent subject of the Emperor of China became citizen of the United States by virtue of the Fourteen Amendment of the Constitution. Again by majority decision of six judges with two judges dissenting held that Wong Kim Ark had become at the time of his birth citizen of the United States. However Chief Justice Fuller with whom Mr. Justice Harlan concurred dissented the opinion.
In this way, birthright citizenship is protected under the Fourteenth Amendment of the Constitution of the United States and so is interpreted by the US Supreme Court. The President of the United States cannot take away these rights even by means of proclamation similar to that of President Abraham Lincoln in this peacetime. Similarly, he cannot scrap this right through presidential order against the very unambiguous provisions of the Constitution and clear precedent of the US Supreme Court. The only path left with the President to satisfy his ambition is to convince the legislatures for bringing in another amendment in the Constitution which could perhaps only be possible through striking a ‘new deal’ with the stakeholder, given the rigidity of the US Constitution against the amendment.
The author is Postdoc Fellow at Portsmouth University Law School, Portsmouth, United Kingdom. Earlier he has been Research Scholar at the Columbia Law School, Columbia University in the City of New York, United States.
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