ROLLING THE DICE

Posted in Rants on June 17th, 2010 by Ed

Occasionally a state legislature will pass a law so blatantly unconstitutional that even the tamest mainstream media outlets refuse to be diplomatic and pretend otherwise. It seems like a fantastic waste of time and resources to pass such legislation but it is usually an effort, driven by well-funded interest groups, to force an issue before the U.S. Supreme Court. Most of the truly wacky anti-abortion legislation – say, an Oklahoma law that allows physicians to withhold ultrasounds from pregnant women if it reveals birth defects that may lead her to consider abortion – is a transparent attempt to goad the Supreme Court into rehashing Roe v. Wade.

So when Arizona's state legislature – and by the way, Arizona must be butter because it's on a ROLL lately – proposes legislation to forbid birthright citizenship to babies born in Arizona of illegal immigrant parents, we recognize their larger goal. That a state cannot pass a law altering Federal immigration and citizenship policy is so obvious that it requires no comment. That this law is bound to work its way into Federal court is equally obvious. I'm afraid, however, that anti-immigrant people may get exactly what they want from the Courts this time.

American citizenship is available through three avenues: naturalization, jus soli (literally "law of the ground" or "soil"), or jus sanguinis ("law of blood"). In other words one can apply for citizenship or be born with it either by being born on U.S. territory or being born of two American citizen parents (even if born outside of the U.S.) The Arizona law would try to redefine jus soli, which, unlike many aspects of citizenship law, rests on particularly shaky ground.

Jus soli is based on the 14th Amendment, which states that, "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." Like so many Constitutional provisions, there is an obvious subjective component to this language: what exactly does "subject to the jurisdiction thereof" mean? Is 'jurisdiction' being subject to the laws of the US? If so, than anyone physically present in the US meets the definition. Does 'jurisdiction' imply citizenship or legal residence? Let's just say it would not be difficult to make that argument. Not at all.

The Court ruled on that issue in one of the most important – even if not the most well known – decisions in its history: US v. Wong Kim Ark (1898). Wong was born in California to two Chinese citizens. As an adult he was denied re-entry into the US after a visit to China because he was not a citizen by virtue of his parents' Chinese citizenship. Eventually the Court ruled in Wong's favor (following the British common law application of jus soli) stating that a child born in the U.S. of two non-citizen parents is a birthright citizen as long as the following conditions exist:

1. The parents are not born of foreign diplomats.
2. The parents are not hostile forces occupying U.S. territory by force.
3. The parents have permanent residence in the U.S.

The problem is that Wong's parents were legal residents of California, hence the decision does not tell us whether or not "subject to the jurisdiction thereof" requires residence or legal residence. "Permanent" residence does not imply legal residence, hence the decision has been interpreted to mean that anyone born on U.S. soil is an American citizen. As far as defining jus soli in the United States, this case is pretty much it. The concept of birthright citizenship rests on an interpretation of the Constitution, not the Constitution itself. The language is too vague to permit the latter. It would not be difficult to make a plausible argument that the Wong decision need not automatically apply jus soli to the children of illegal immigrants depending on what constitutes jurisdiction. To be honest, I think that's a pretty good argument.

In short, I will not be even slightly shocked if the current Court – with its four vote block of ultra-conservatives – were to offer a different interpretation of "jurisdiction" that excludes illegal residents. I am personally ambivalent about this issue. I don't lie awake at night worrying about "anchor babies" and how the imm'grunts are a-comin' to take our jobs and women. The problem of illegal immigration is caused entirely by lax enforcement (or non-enforcement) of immigration law, which in turn is a function of campaign contributions from businesses that thrive off illegal workers. So I'm willing to consider "anchor babies" an externality of the elevation of profit above all other concerns. In other words, I won't shed tears over the decision either way despite my belief that the current interpretation of "jurisdiction" is correct. For people with a stronger stake in the issue, though, the Arizona bill and the potential for this issue to reach the Supreme Court should be troubling.