- Martin Luther King Jr. Professor
Gabriel (Jack) Chin penned an essay for Talking Points Memo on birthright citizenship
In a Talking Points Memo article entitled, "America Has Freaked Out Over Birthright Citizenship For Centuries," Professor Gabriel (Jack) Chin points out that the heated rhetoric over the citizenship of children of undocumented immigrants is far from new.
In his article, Chin writes:
"The original Constitution said nothing about who was a U.S. citizen. It gave Congress the power, exclusive of the states, to grant citizenship by naturalization, but it neither addressed the requirements for naturalization nor described the legal status of those obtaining naturalized citizenship. In 1790, Congress linked race to citizenship by allowing only “free white persons” to naturalize; racial restrictions of one kind or another were in effect continuously until 1952. The Constitution also provided that only a “natural-born citizen” could be elected president, but here too, the document failed to explain who was a natural-born citizen, leading to repeated controversies about the eligibility of candidates born out of the United States, such as John McCain, George Romney and Ted Cruz.
And yet, even in the earliest days of the Republic, there must have been U.S. citizens. As the Supreme Court and other courts recognized, U.S. citizenship was granted by unwritten law. As a “common law” legal principle, in general, children born in the United States were citizens. However, because the rule was unwritten, its precise contours were debatable. The Supreme Court’s notorious Dred Scott case, decided in 1857, turned on the majority’s conclusion that a person of African ancestry was not a U.S. citizen, even though born here. The Court essentially found an unwritten exception to the unwritten law—namely, that it benefited only whites."