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The Good, the Bad, and Just Plain Confusion Surrounding Birthright Citizenship

Near the conclusion of his Farewell Address on January 12, 1989, President Ronald Reagan revealed his vision of an exceptional America that was divinely-inspired, a shining city on a hill' modeled on the one originally articulated by the Puritan John Winthrop. The way he saw it, America was "a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity." Securing America's sovereignty, President Reagan reasoned, may require city walls, but "if there had to be city walls, the walls had doors, and the doors were open to anyone with the will and the heart to get here." He didn't see America as some malleable idea, but a sovereign nation built on history and the rule of law―a destination which, through a bit of effort and the proper legal channels, one could become an American. An American can move to France and never be "French," he later told William F. Buckley, but a Frenchman can emigrate to America and embrace Americanism. Being French is a "birthright" unique to France's experience because French people and a nation are defined by its "Frenchness" according to a common language tied to a shared geography, ancient history, customs, and traditions. Becoming an American is a frame of mind and "a legal right that foreigners are privileged to earn." As Reagan's friend, the former British Prime Minister Margaret Thatcher, put it regarding immigration to America, "Americans and Europeans alike sometimes forget how unique is the United States of America. No other nation has been built upon an idea―the idea of liberty. They are the product of history and not of philosophy." Rebuking the emerging international order and the European Union after the Cold War, Mrs. Thatcher warned that "The European nations are not and can never be like (America)… You can construct a nation on an idea, but you cannot reconstruct a nation on the basis of one."

"You cannot build Jerusalem in Brussels," she famously quipped. Like all great civilizations, America is evolving into the product of its history. Current attempts at reconstructing America based on another idea are foreign to her mission and contradict her foundation. The year 2021 is a destination to which 244 years of American politics, social and cultural precedents have arrived in the hands of a weary population reeling from a pandemic on the one hand, while witnessing the deconstruction of its culture and connections to the past on the other. President Reagan's Farewell Address was delivered only 11 months before the fall of the Berlin Wall. At the time, immigration wasn't the predominant political battleground for charting the course for America's future. A generation later, however, we hear shouting and rarely civil debates regarding "DREAMERS" and "anchor babies" questions about birthright citizenship and what it means to be an American citizen. So let us start with the basics: in Article II, Section 1 of the U.S. Constitution, we read that "No one except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President." We learn from Article IV, Section 2, that "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Furthermore, "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." The first legislation addressing immigration policy, the Naturalization Act of 1790, limited naturalization to "free white person[s] … of good character," thus excluding Native Americans, indentured servants, slaves, and later Asians. Free blacks, however, were allowed citizenship at the state level wherever slavery was banned. This was in line with the three-fifths Compromise (next paragraph), which punished the southern states for clinging stubbornly to "the peculiar institution."

According to the Constitution, the citizen of a state, held precedence over identifying as a citizen of the whole United States. Thus the controversy over birthright citizenship resonates from the period of slavery and Indian rights. Before the Civil War, regulating the national census for determining the congressional representation of each state was defined by Article I, Section 2 in terms of "free persons" versus others who didn't count as such:

With legal slavery outlawed and the Three-Fifths Compromise abolished under the 13th Amendment, defining the federal government's role in regulating immigration changed, as did citizenship standards. For example, the Immigration and Naturalization Act of 1952 (abbreviated as 'INA') abolished the racial restrictions from prior statutes while retaining a quota system for nationalities and regions. It also defined three types of immigrants: 1) immigrants with special skills or who had relatives who were U.S. citizens exempt from quotas and who were to be admitted without restrictions; 2) average immigrants whose numbers were not supposed to exceed 270,000 per year; and 3) refugees, while placing great importance on labor qualifications. Furthermore, the federal government vested the authority to declare an immigrant lacking good moral character ineligible for admission or naturalization. Its prescription for deporting those engaged in a list of subversive activities violating the "good moral character" requirement―e.g., crimes involving moral turpitude, illegal gambling, alcohol use, drug trafficking, prostitution, illegal voting, fraud, etc.―was deemed vital to national security at the onset of the Cold War.

Still, what constitutes a "citizen" has never been clearly defined. There's even debate of whether one is a natural-born citizen if, despite a birth on foreign soil, U.S. citizenship immediately passes from the person's parents, for which former President Donald Trump took Sen. Ted Cruz to task during the 2016 GOP presidential primaries. For example, one can be a citizen while not being' natural born' if they legally gain citizenship through naturalization. As defined rather poetically by the U.S. Supreme Court in Nebraska v. Thayer (1892), naturalization is "the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Six years later, through the Court's interpretation of the first clause of the 14th Amendment―that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside"―it vaguely explained qualifications for unconditional birthright citizenship in the United States v. Wong Kim Ark (1898).

In contrast, § 1401 lists eight contradictory categories of "nationals and citizens of the United States at birth," including those born in the U.S. and subject to its jurisdiction; and children of one or more U.S. citizens abroad, as long as the parent(s) meet specific requirements. This means foreign-born citizens falling under a provision in 1401 are, by statutory definition, not 'naturalized.' The term' natural born', however, is never used.

The controversy therein unravels through a slew of questions. For one, how can our system know if a mother living here illegally intended to remain in America and, therefore, any 'anchor babies' she delivers could be solely a 'natural citizen' of the United States or her mother's country of origin? What about some broader definition of "natural-born" citizenship that could theoretically mean the baby may be entitled to 'dual citizenship'? If the mother is arrested for living in the U.S. illegally without a work visa, she can be deported according to federal immigration laws. However, if the newborn baby is arbitrarily defined as a 'citizen' while the mother is not, who would raise the child here if the mother refuses to place the baby up for adoption? Then there's the other matter of green cards, the Alien Registration Card (ARC), given to legal permanent residents of the United States as an entry document proving they're authorized to live and work here while enabling holders to return after temporary absences to demonstrate their right to work. U.S. citizens and lawful permanent residents can also apply for marriage green cards to help their spouses gain permanent residence in the United States. While the green card expires after several years and must be renewed, the holder's permanent residence itself does not expire: only their ability to prove it using the card. Importantly, green cards are only provided to documented ''aliens'' because the INA defines the term aliento mean "any person not a citizen or national of the United States."

Migrants wear Biden T-shirts at US-Mexico border, demand clearer policies. (Fox News)

The most consequential immigration law, the Immigration and Nationality Act of 1965, replaced the National Origins Formula with a seven-category preference system prioritizing relatives and children of U.S. citizens, legal permanent residents, professionals, and other individuals with specialized skills, as well as refugees. Because the 1965 law also established a numerical limit on immigration from the Western Hemisphere, it has significantly impacted America's historic racial demography through significant increases in the total number of immigrants from Asia, Africa, and Latin America at the expense of its white majority. (See my article "Mexico is Recolonizing the American Southwest. Almost No One Notices.") The current Democrat proposals to nationalize elections under the For the People Act and amnesty for at least 11 million illegal aliens are their attempts to weaponize the 1965 law by exploiting the 15th Amendment ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude") to expand the minority population and thus their voter rolls.

Furthermore, the Equality Act would replace "equal protection under the law" with a new term, "equity," by granting the government the power to discriminate against Americans based on race, gender identity, sexual orientation, and citizenship status. At the peak of last year's George Floyd race riots, an example of an equity policy in California featured the deeply unpopular repeal of Proposition 209. This referendum prohibited the state from discriminating on race, sex, color, ethnicity, or national origin. Black nationalist rage isn't confined to just white people but to all light-skinned minorities. For example, a Princeton University study from 2015 tried to measure how race and ethnicity affect admissions by using SAT scores as a benchmark to determine a number' bonus' for determining how many extra SAT points an applicant's race is worth in revising its affirmative action policy―resulting in blacks receiving a 'bonus' of 230 points and Hispanics 185 points. Meanwhile, Asian applicants (both foreign and domestic) were penalized 50 points—meaning they had to do that much better than the other minorities to qualify for admission under its racial quotas. "Cliché applications" by the "cookie-cutter Asian" who participates "in an orchestra and plays piano… plays tennis… wants to be a doctor etc." and will "write about immigrating to America" are negatively reflected under both Princeton's and Harvard's racial profiling policies.

There's a strong case for defending a 2012 survey in which more than half of white Americans expressed that whites have replaced blacks as the 'primary victims of discrimination. Driven by "critical race theory" and in light of the 1965 immigration law, imminent slavery reparations and the rapidly declining share of the white European population from which the bulk of tax revenue is raised will deteriorate race relations beyond repair, as equity policies further strip additional government access and civil liberties from citizens with light skin color. It's also not a coincidence that since 1965, the 14th Amendment has become the most misunderstood and politically-exploited section of the Constitution, especially in the age of globalization and in justifying expanding the size and power of the welfare state. Most Democrats see the Constitution as irrelevant and, at best, a 'living document' whose words change meaning wherever the political winds blow. Others, primarily international multi-billionaire oligarchs, see open borders as a pipeline for facilitating the importation of mass quantities of undocumented aliens as cheap labor to skirt federal labor laws that otherwise apply to American citizens. Often working as slave labor in 'sweat shops' for pennies on the dollar, many are young children abducted by human traffickers. Though the 13th Amendment banned political slavery before the Civil War, slavery remains alive and well under America's radar. The fact our government sees the 14th Amendment as its lynchpin to committing atrocities at the southern border and calls this "social justice" suggests that the outcome of the Civil War was never substantiated or transformational at all.

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About the Author:

Jonathan P. Henderson (B.A. in History, Minor in Pol. Sci.; Univ. of Tennessee, 2012) is a resident of Knoxville, TN. He is Owner/Administrator/Editor-in-Chief of The Conservative Historical Review and a blogger/columnist for PolitiChicks and Intellectual Conservative.

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