Talk:Birthright citizenship in the United States of America

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I have two questions regarding this entry:

1) When did it become a "U.S. tradition" that any child born to parents owing alligance to another country is an American citizen?

2) When did the United States choose to recognize Jus soli?

I am positive from my research that from 1791-1946 that allegiance to the Constitution is what defined American citizenship. Many of the the narrative stories of New York Italian, Irish and Polish immigrants from 1900-1930 speak of being born in NYC and gaining citizenship years later when their parents had become naturalized.

At least as far back as 1830, when the US Supreme Court decided Inglis v. Trustees of Sailor's Snug Harbour in City of New York, 28 U.S. (3 Pet.) 99 (1830) which tried to settle whether a child born in NYC in approximately 1776 was a US citizen, or a British citizen. If John Inglis was born with New York City while it was under US control, then he was a US citizen, if on the other hand he was born while the city was under British control, then he was a British citizen. Unfortunately there was no proof as to when Inglis was born, and the court could not find enough evidence to decide one way or the other. His father was a staunch Royalist, and removed Inglis to England when the British Troops abandoned the city. It was determined that his father had made a choice for him, and that he as an adult had never done anything to counteract that choice, and had spent his adult life living as a British citizen, thus he could not very well claim US citizenship. Hope that helps. Brimba 02:31, 2 February 2007 (UTC)
I'm not a lawyer, but it seems to me that the answer to #1 is that national allegiances owed by either or both parents (to whatever extent those allegiances might be known or knowable with certainty) do not bear under current U.S. legal tradition on the question of whether or not a child has a valid claim to U.S. citizenship. Inglis does speak of parental allegiances, but that case involved a legal environment present within a critical timeframe during the U.S. revolutionary war. I think that the answer to #2 is July 9, 1868 -- the ratification date of the Fourteenth Amendment to the United States Constitution. -- Boracay Bill 03:32, 2 February 2007 (UTC)
In U.S. v. Wong Kim Ark, the Supreme Court said that jus soli in the U.S. had been inherited as part of English common law. The 14th Amendment entrenched jus soli but didn't start it. Richwales 05:10, 2 February 2007 (UTC)

I read somewhere under New York law (and a few other states) the state did not recognize citizenship by birth to non-resident aliens. That is most likely the cause of the narrative stories you mention. Considering that Montana and South Dakota adopted similar laws show Jus Soli was by no means the rule. LawPro (talk) 04:53, 3 April 2008 (UTC)

Contents

[edit] Proposed reversion of Revision as of 07:58, 9 February 2007

This revision added a block of text which had been moved from Illegal immigration to the United States into the Congressional actions section of this page. The added text is not a good fit with the writing style elsewhere on this page, does not relate well to the section where it was placed, in some places repeats points made elsewhere on the page, in some places seems to conflict with points made elsewhere on the page, and in some places seems to make points which are at least implicitly POV (IMO, of course - See the diffs here). Barring objection, I propose deletion of the text added by this revision. Comments? Objections? -- Boracay Bill

I'm particularly concerned about the portion of the new text which talks about whether U.S. v. Wong Kim Ark does or doesn't apply to US-born children of illegal aliens. Although some do admittedly argue that the Supreme Court majority in Wong Kim Ark went out of their way to highlight his parents' status as legal US residents and did not intend their ruling to apply to children of illegal immigrants, an argument can be made that the court majority was simply trying to make it clear that Wong's parents were not diplomats or any other sort of official representative of the Chinese emperor, but were simply ordinary people (and thus unquestionably subject to US jurisdiction). The Supreme Court's later ruling in Plyler v. Doe seems to reinforce this interpretation. If the block of text in question is kept, I would feel a need to rework this portion for NPOV. Richwales 19:13, 11 February 2007 (UTC)

[edit] Suggestions

I think this article needs a revision.

It makes hardly any mention of the denial of birthright citizenship to non-whites prior to the 14th amendment. The statement "Throughout the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship.", while a direct quote from a reputable source, is not really technically accurate as birth citizenship was denied to African slaves, as shown in the Dred Scott case. After the civil war, The 14th amendment was created to ensure that African-Americans, particularly freed slaves, received U.S. citizenship.

Good point. Quoting a bit from DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856):

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [60 U.S. 393, 406] rights and immunities which the Constitution and laws of the State attached to that character.

which probably makes legal sense, if not moral sense in light of today's sensibilities, especially in light of the 10th amendment in 1791 which had mandated: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Of course, the 14th amendment changed that in 1868 with: "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That big change probably should be pointed up. -- Boracay Bill 13:12, 12 August 2007 (UTC)

This article makes no mention of any of these concepts, instead focusing largely on today's hot-button topic of immigration. —Preceding unsigned comment added by 71.232.210.192 (talk • contribs)

[edit] Nguyen v. INS, 533 U.S. 53 (2001)

I have removed a sentence from the section Children born overseas out of wedlock
(1)The final element has proven especially unfortunate in these cirumstances, as once the child has reached 18,
(2)the father is forever unable to establish his son's paternity to deem his child a natural-born citizen.
The first part of the sentence fails POV and the second is in error. DNA tests can determine paternity within the bounds of reasonable doubt. They are used in U.S. courts regulary.-----Adimovk5 (talk) 19:12, 16 December 2007 (UTC)

You are correct, but it's not sufficient to satisfy the statute, as it has to be established prior to the 18th birthday. If DNA evidence is proffered after the child has turned 18, it won't cure the deficiency. Jkatzen (talk) 16:30, 17 December 2007 (UTC)

[edit] Edit of first sentence

I had to edit the first sentence of this article, because it was getting a bit ridiculous and clearly not neutral. It previously read that under the "current" reading of the US Constitution, anyone "now" born in the US is automatically a citizen. While there's nothing in the sentence which is technically untrue, the use of the words "current" and "now" imply that this is a recent development, which is not the case at all. As the article points out, the 14th Amendment was ratified over 140 years ago, and the reading of it to include birthright citizenship has court precedent going back at least 100 years. Clearly the author of the sentence isn't happy about the fact, but if that's the case he or she can take it up with Congress and state legistlatures, because that's the way it is now. To phrase it the other way is clearly in violation of Wikipedia's NPOV rule. You may as well start off an article about President Bush saying "President Bush is not technically classified as a moron." Nothing untrue there, but clearly the sentence is trying to imply something.

- HowardWtalk 7:08pm, Dec 22, 2007 —Preceding comment was added at 00:08, 23 December 2007 (UTC)

[edit] Section on children born overseas is not relevant to this article

It would be better placed in a general article about US citizenship. Grover cleveland (talk) 07:49, 23 December 2007 (UTC)

[edit] U.S. v. Verdugo-Urquidez

I question the relevance of the section mentioning U.S. v. Verdugo-Urquidez, and I also question the claim that this case "clarified" the Supreme Court's earlier ruling in Plyler v. Doe.

I think the editor is making too much of the "substantial connections with this country" phrase from the Verdugo-Urquidez opinion. Verdugo-Urquidez didn't have anything at all to do with the constitutional rights of aliens (legal or illegal) within the US; the case was about an alien who was arrested in Mexico and extradited to the US, who was challenging searches/seizures done in Mexico as being violations of the Fourth Amendment. The "substantial connections" verbiage was directed at the suggestion that Verdugo-Urquidez had supposedly gained the right to challenge those Mexican searches on US constitutional grounds because he had been extradited to the US (and was thus now in the US).

Verdugo-Urquidez cited Plyler, to be sure, but it did not "clarify," change, or overrule the holdings of Plyler in any way. Even if the Supreme Court's intent had been to overrule or modify the Plyler holdings, such comments in Verdugo-Urquidez — a case involving a totally different situation — would at best be obiter dicta. Richwales (talk) 22:24, 17 March 2008 (UTC)

The specific statement which is in dispute is "those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212." Here, the court is explicitly stating that the only thing Plyler v Doe established was that "aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country". You question whether it is a clarification. What then would you call it?
You say, "Verdugo-Urquidez didn't have anything at all to do with the constitutional rights of aliens (legal or illegal) within the US" On the contrary, the case was about the rights of an alien in the U.S. (it only became a case after the alien entered the U.S.)
However, even if you were right (and I point out once again, that you're not, but just for the sake of the argument), I don't see its relevance. The court was specifically talking about Plyler (it wrote, "see, e.g. Plyler v. Doe") and other cases. Noone has suggested that Verdugo-Urquidez in any way changed or overruled the holdings of Plyler. What has been said is that Verdugo-Urquidez clarified the findings of Plyler. —Preceding unsigned comment added by 75.179.153.110 (talk) 23:35, 17 March 2008 (UTC)
I think the thing that's making me confused/unsettled here is that I don't understand what use you (or others) are proposing to make of the "have developed substantial connections" phrase in the context of an article about birthright citizenship. Do you believe this verbiage opens up the possibility of a situation in which a US-born child of illegal alien parents would not have US citizenship by birth if the parents had somehow not "developed substantial connections" with the US? I haven't seen any suggestion that this would be so — certainly nothing on point in Plyler (which dealt with children who were unquestionably not US citizens by birth, having been born to non-citizens outside the US) — nor in Verdugo-Urquidez (the whole point of which being that the person involved was indisputably and unquestionably not a US citizen).
The only use of the "substantial connections" idea which I saw in Verdugo-Urquidez was to make the point that Mr. Verdugo's having been brought to the US as an extradited prisoner was not enough of a US connection to endow him with Fourth Amendment protection against search/seizure activity performed in Mexico. I suppose this case, or the way you're proposing that it "clarified" Plyler v. Doe, might be applicable to the birthright citizenship debate if a pregnant female alien were extradited to the US, gave birth while in US custody, and the question of her child's right to US citizenship were to come up; but other than that, I'm afraid I don't see enough of a connection to hold water, and if you believe there is a connection (presumably something else that I've got a mental block about right now), then I think it needs to be made more explicit — all the while, of course, taking care to avoid violating WP:SYNTH. Richwales (talk) 04:46, 18 March 2008 (UTC)
I think the thing that's making me confused/unsettled here is that I don't understand what use you (or others) are proposing to make of the "have developed substantial connections" phrase in the context of an article about birthright citizenship.
Until we have a reliable source which answers the question, "what does 'have developed substantial connections' mean in the context of birthright citizenship?", that's another irrelevant question.
Do you believe this verbiage opens up the possibility of a situation in which a US-born child of illegal alien parents would not have US citizenship by birth if the parents had somehow not "developed substantial connections" with the US? I haven't seen any suggestion that this would be so
Again, what I believe isn't relevant. What you believe isn't relevant either. What's relevant is what adheres to Wikipedia policy.
certainly nothing on point in Plyler (which dealt with children who were unquestionably not US citizens by birth, having been born to non-citizens outside the US) — nor in Verdugo-Urquidez (the whole point of which being that the person involved was indisputably and unquestionably not a US citizen).
Given as how the court was specifically talking about Plyler v Doe, the court did think it was on point.
I suppose this case, or the way you're proposing that it "clarified" Plyler v. Doe, might be applicable to the birthright citizenship debate if a pregnant female alien were extradited to the US, gave birth while in US custody, and the question of her child's right to US citizenship were to come up"
Verdugo-Urquidez was about about an alien in the U.S. and the rights he received within the U.S. given that he had not developed substantial connections with the U.S. Plyler was about aliens within the U.S. and the rights they received within the U.S. given that they had developed substantial connections with the U.S. The fact that we're discussing here is that the court clarified that Plyler v. Doe found that these constitutional rights apply only to aliens who are in the U.S. and have developed substantial connections with the U.S. Though, neither case answers the question as to what exactly "substantial connections" are, that's, again, irrelevant.-75.179.153.110 (talk) 10:32, 18 March 2008 (UTC)
75.179.153.110: You need to find a secondary source that backs up your contention that Verdugo-Urquidez is relevant here. If you can't, it should be removed from the article. A supreme court ruling is a primary source. See WP:PSTS: Any interpretation of primary source material requires a reliable secondary source for that interpretation. To the extent that part of an article relies on a primary source, it should:
  • only make descriptive claims about the information found in the primary source, the accuracy and applicability of which is easily verifiable by any reasonable, educated person without specialist knowledge, and
  • make no analytic, synthetic, interpretive, explanatory, or evaluative claims about the information found in the primary source.

Grover cleveland (talk) 15:42, 18 March 2008 (UTC)

And until we have a reliable source of any sort addressing the question of what having "developed substantial connections" with the US might mean in the context of US birthright citizenship, there is really no justification (much less any Wikipedia policy mandate) for bringing up the phrase in this article. Just because the words exist in the Verdugo-Urquidez majority opinion is not, by itself, enough to justify an insistence that the phrase be cited in an article without any context showing it is relevant to the article's topic. At most, there might possibly be justification in mentioning the "substantial connections" issue, but with a cautionary note saying that its possible relevance to the birthright citizenship question remains unclear pending future rulings by the court. But given the very limited extent to which the court applied this concept in Verdugo-Urquidez — invoking it only to counter the suggestion that Mr. Verdugo had acquired as much Fourth Amendment protection as non-resident US citizens have by virtue of his having been brought onto US territory as an extradited prisoner — I would be very hesitant to consider the "substantial connections" phrase to have any sort of widespread application in the absence of some definite indication of its applicability (as illustrated by other Supreme Court decisions). That was why I asked my questions above, and why I (still) consider them relevant to whether or not this phrase belongs in this article. Richwales (talk) 16:13, 18 March 2008 (UTC)
In order to avoid bias, all sources in the article must be examined to see if they withstand the justification given for removing Verdugo-Urquidez. Current justifications given for removing Verdugo-Urquidez (that the case wasn't about birthright citizenship, for example), when applied in an unbiased manner, will result in the removal of other content in the article (for example, INS v. Rios-Pineda and Hamdi v. Rumsfeld aren't specifically about birthright citizenship either). This is not to say that current justifications given for removing Verdugo-Urquidez are sufficient for removing it (I do not believe the Wikipedia community has reached a consensus on that yet, though I do admit that it seems to be obviously leaning more in one direction than another), This is only to point out that we must be consistent in our application of any justification we go with.-198.97.67.57 (talk) 17:46, 20 March 2008 (UTC)
I think I would definitely support the removal of the sections on Rios-Pineda and Hamdi v. Rumsfeld, as they currently stand, from the article. As 198.97.67.57 points out, they don't have any secondary sources supporting their relevance here, and neither case, on its face, is about birthright citizenship. (In addition, the sections hardly add anything to the article since the discussion is so brief.) This is not to say that they (or indeed Verdugo-Urquidez) should never be in the article, but that they should only be inserted when we have sources to justify their inclusion. Grover cleveland (talk) 18:44, 20 March 2008 (UTC)
Everyone please be aware that I've made a "request for comments" (RfC) on the Plyler v. Doe talk page, asking for outside input on whether or not citing U.S. v. Verdugo-Urquidez is appropriate on that page. Richwales (talk) 06:31, 19 March 2008 (UTC)