Three days after President Donald Trump began his second term, Judge John Coughenour, a Reagan appointee, has become the first judge to block Trump’s attempt to strip the citizenship of many Americans born in the United States. “I’ve been on the bench for over four decades,” Coughenour said at the time, adding that “I cannot recall another case where the question presented is as clear as this one.”
Coughenour was the first of many judges to strike a Trump’s executive orderwhich aims to strip the children of undocumented immigrants and immigrants who are in the US legally, but only temporarily, of citizenship.
The fate of Trump’s order against citizenship is now before the Supreme Court, in a case known as Trump vs. Barbaraand the legal case against him is as good as these cases get. Constitution 14th Amendment states that “all persons” born in the United States are citizens, with one narrow exception that does not apply Barbara. And the Supreme Court settled this question almost 130 years ago United States v. Wong Kim Ark (1898).
- Trump’s legal arguments against birthright citizenship are very weak.
- The main argument for his rule was first introduced in the 19th century by white extremists who wanted to deny Chinese Americans citizenship.
- Yet even in an era of clear white supremacy, 19th century courts did not accept that argument as grounds for denying citizenship to the children of Chinese immigrants.
However, when Trump’s legal disputes Barbara it is very weak, not really new. Well, they are quite old. As a law professor Sam Erman and historian Nathan Perl-Rosenthal explains in a recent paper, a white supremacist lawyer named Alexander Porter Morse – the same lawyer who would go on to argue the pro-apartheid side. Plessy vs. Ferguson (1896) – organized an unsuccessful effort to undermine the 14th Amendment in the late 19th century, largely denying US citizenship to Chinese Americans.
The Supreme Court put that effort to rest Wong Kim Ark. But Trump’s unusual arguments in Barbara the case closely mirrors an earlier version of the anti-Chinese citizenship argument developed by Morse and other like-minded lawyers. of Trump short inside Barbara twice he cites Morse’s 1881 book, which made this early case against citizenship for Chinese Americans, as well as several other writings by advocates and scholars who shared Morse’s goals.
Morse argued in 1881 that the 14th Amendment, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” should be read to deny citizenship to “children of temporary aliens in the United States.”
At the heart of Trump’s brief is a list (on pages 26-28) of citations from 19th and early 20th century books and law review articles that make the same argument that Morse made in his 1881 treatise. Trump’s lawyers claim that the 14th Amendment does not apply to “children of current aliens or illegal aliens.”
The mere fact that an argument existed in the late 19th century does not prove that it was widely accepted, or even that it enjoyed any meaningful support. According to Erman and Perl-Rosenthal, even Morse eventually rejected the anti-citizenship argument he made in his 1881 book, telling the American Bar Association in an 1884 speech that linking citizenship to whether parents are permanent residents of the United States “it completely fails to provide a reasonable or practical principle of decision.” (Though Morse came up with other legal arguments seeking to undermine the 14th Amendment.)
Trump, in other words, wants to justify his anti-citizenship order by using a century-and-a-half-old idea that was quickly rejected even by its most famous 19th-century defender.
What exactly does the 14th Amendment say?, and why Morse wanted to change it
The 14th Amendment provides that “all persons” born in the United States are citizens, except infants who are “not under the jurisdiction” of the United States. The word “jurisdiction” means that a person is subject to the laws of the United States. So, if Trump was right that the children of undocumented immigrants or temporary visitors to the United States are not citizens, so be it it will mean that the federal government cannot deport them. Or even arrest them if they rob a bank.
In modern America, this “under the jurisdiction” exception of birthright citizenship applies primarily to the children of ambassadors and other foreign diplomats whose families enjoy diplomatic immunity from US law. But, as the Court explained Wong Kim Arksegregation was also intended to exclude many Native Americans, who were considered citizens of their tribal nations and not of the United States. (Congress extended full citizenship to “All non-citizen Indians born within the territorial limits of the United States” in 1924).
A few lawmakers opposed the 14th Amendment’s goal of extending citizenship to nearly everyone born in this country — sometimes. to mention the racial or ethnic groups that they saw as not suitable for citizenship. In an 1866 congressional debate, for example, Senator Edgar Cowan complained that “the child of a Chinese immigrant in California” and “the child of a Gypsy born in Pennsylvania” should not be citizens.
After the 14th Amendment was ratified, many lawyers who shared Cowan’s views began to develop legal arguments to exclude people of color from citizenship. At the time, Morse was a former Confederate army officer and a fledgling lawyer who had become a prominent figure in the new field of international law. He would be the main advocate of the United States for the concept of jus sanguinis, or “blood right” citizenship. – the idea that a child’s nationality should be determined by the nationality of their parents.
Of course, Morse’s greatest obstacle, as an advocate of making jus sanguinis law in the United States, is that the 14th Amendment clearly rejects this theory of citizenship. So the white supremacist lawyer spent much of his career trying to shoehorn his preferred theory into constitutional language that would not support it, often advancing theories that sought to deny citizenship to immigrants from non-European nations.
His 1881 book, Convention on Citizenship, Birth and Naturalizationit was an early attempt to do so. Although Morse acknowledged that the “primary object of” the Citizenship Clause of the 14th Amendment was to “establish citizenship for the blacks,” he argued that the amendment “does not include the children of temporary aliens within the United States.”
This point has a big role in Trump’s Barbara shortopening with the line “The Fourteenth Amendment’s Citizenship Clause was adopted to grant citizenship to freed slaves and their children—not to the children of current aliens or illegal aliens.”
To the modern reader, the connection between Morse’s claim that the children of transient aliens to the United States are not citizens, and the broader goal of denying American citizenship, is perhaps not obvious. By the 1870s, many Chinese citizens had moved to California, often drawn by work to build railroads connecting the western state to the rest of the nation. Descendants of these immigrants make up a large part of the large Chinese American community in modern-day California and throughout the United States.
These immigrants created families, started businesses, and many of them spent their entire lives in the United States. It is now clear that these immigrants were no more short-term visitors than most European immigrants with a similar history.
But in the 19th century, the mainstream racist group held that people of Chinese descent were so alien that they could not integrate into American society. An 1877 message to Congress drafted by seven California state senators, for example, complained that Chinese immigrants “they appear to be the antediluvian people renewed.” The senators claimed that “there is no hope that any communication with our people, however long continued, will ever reconcile (the Chinese immigrants) to our institutions, enable them to understand or appreciate our form of government, or to assume the duties or perform the duties of citizens.”
Morse’s 1881 manuscript was based on the work of Francis Wharton, another prominent international jurist of the 19th century whose text is mentioned a lot in Trump’s Barbara short. Wharton focused on the legal concept of “residence,” or the intention to remain indefinitely in a place, and argued that Chinese citizens were so different from Americans that they were “does not have the capacity for citizenship,” assuming that they “don’t expect to stay forever in this country” and that they all “expect to return to China sooner or later.”
Thus, by linking citizenship with permanent residence, Morse hoped to exclude people of Chinese descent from American citizenship altogether. If Chinese people could not live in the United States at all, then a law denying citizenship to the children of temporary aliens would exclude Chinese Americans.
Even Morse finally abandoned his own argument from 1881
One problem with Morse’s 1881 citizenship theory, even from the point of view of white people who shared his goals, is that, while anti-Chinese racists may believe that no Chinese can intend to live in the United States permanently, the court responsible for deciding whether a certain Chinese immigrant wants to remain here permanently must actually base its decision on the facts.
Trump’s lawyers want to implement a 145-year-old idea that was deemed impossible even by one of its previous champions.
As Erman and Perl-Rosenthal write, the Chinese immigrant advocacy group of the 19th century “acquired the best lawyers, supported thousands of claims, he won many timesand asserts a broad interpretation of the 14th Amendment.” Lawyers impressed by the writings of people like Morse or Wharton might argue that no Chinese immigrant can assimilate into American society or intend to remain in the United States permanently. But private immigration attorneys had no trouble finding clients who had impersonated, and who wanted to remain in California or elsewhere in the United States.
That is why, just three years after the publication of Morse’s 1881 treatise, he told the American Bar Association that his own proposed test had failed. Morse abandoned his own argument because it was not winning in court.
Of course, Morse and other lawyers who shared his goals devised new strategies to deny Chinese citizenship – strategies that the Court ultimately rejected. Wong Kim Ark. It is likely that Morse’s claim that citizenship should be linked to permanent residency would be forgotten today, even by most immigration law scholars, if not for the decision of Trump’s lawyers to revive this claim.
And it will be very strange if the judges take this claim seriously. The language of the Constitution is clear. The issue was resolved Wong Kim Ark. And Trump’s lawyers want to implement a 145-year-old idea that was deemed impossible even by one of its previous champions.
