Birthright Citizenship

I didn’t think the national debate on immigration could get any more contentious this election cycle.

I was wrong.

During an interview with Axios on HBO, President Trump spoke about his desire to modify the widely agreed, but not universally accepted (nothing ever is), legal understanding of the 14th Amendment birthright citizenship clause and revoke or terminate the birthright citizenship of children born on U.S. soil to illegal or undocumented immigrants using an executive order, believing this to be a magnet for illegal immigration, the controversially named “anchor baby” scenario. Quick point on this, children born as birthright citizens are unable to sponsor their parents for permanent residence until they turn 21 and the parents must still meet the requirements for a green card. Know the law. Get the facts. Politicians are playing you.

Whether such a proposal will be enacted is yet to be determined. This could be mere political posturing by Trump to pander to his anti-immigration base (it’s more difficult to claim to be only anti-illegal immigration when birthright citizenship is threatened), but this also could be an overture to a serious constitutional battle over restrictions to birthright citizenship and the ability of either Congress via statute or the President via executive order to define “jurisdiction” in such a way within the context of the 14th Amendment to only apply to children of citizens or lawful resident aliens and thereby exclude children born to unlawful alien residents (i.e. undocumented or illegal immigrants) based on a legal theory supported by a small number of legal scholars.

Nevertheless, let’s take a stroll through the annals of US immigration law as it pertains to birthright citizenship.

Birthright citizenship is known as jus soli (“right of the soil’ – a common law doctrine) and is a legal principle derived from English common law and is primarily practiced in the Western hemisphere being comprised of nations of immigrants. Its counterpart is jus sanguinis (“right of blood” – a civil law doctrine) and is a legal principle derived from Roman law in continental Europe and is practiced in much of the rest of the world in which national identity is largely defined by ancestry, tribe, race, or ethnicity. While US citizenship law is based on both principles and contains aspects of both (e.g. birthright citizenship, birth outside the country to a citizen parent, or naturalization), the dominant legal principle is jus soli.

While the US had no legal definition of birthright citizenship until after the Civil War, it was widely understood that birthright citizenship was a valid legal principle inherited from English common law and this legal understanding was upheld in an 1844 New York state case (Lynch v Clarke) in which it was held that a woman born to alien parents temporarily residing in New York was a U.S. citizen.

Slaves, among others, were excluded from U.S. citizenship by the 1790 Naturalization Act, an exclusion upheld by the Dred Scott v. Sandford (1857) ruling stating that slaves, former slaves, and their descendants were not eligible to be citizens. Additionally, Native American were not considered citizens because the tribes were considered to be outside the jurisdiction of the U.S. government.

The Civil Rights Act of 1866 contained a provision that declared the recently freed slaves to be citizens but also “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Fearing the Civil Rights Act might later be repealed or struck down as unconstitutional, Congress subsequently drafted the 14th Amendment a mere two months after the passage of this act.

14th Amendment
Section 1a
“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.”

One of the key defining cases for birthright citizenship came at the end of the 19th century. In United States v. Wong Kim Ark (1898) the Supreme Court held that a child born within the U.S to foreigners present on U.S. soil is a U.S. citizen with four exceptions. Three of the exclusions were based on English common law. Namely, children born to foreign rulers or diplomats, children born on foreign public ships, or “children of alien enemies, born during and within their hostile occupation.” A fourth exclusion excluded specific Native Americans on the basis of their exclusion in the 1866 Civil Rights Act. The dissent argued that the phrases “not subject to any foreign power” and “subject to the jurisdiction thereof” from the 1866 Civil Rights Act and the 14th Amendment, respectively, are synonymous and interchangeable in meaning to argue the original intent of the 14th Amendment was to exclude children born to foreigners while passing through the country.

One legal theory proposed by certain legal scholars suggests that United States v Wong Kim Ark settled the law for children born to lawful resident aliens but left the law unsettled on the question of whether children born to unlawful (i.e. undocumented or illegal immigrants) resident aliens are given birthright citizenship because the parents are not subject to the jurisdiction of the United States and assert that illegal immigrants are not under the full and complete jurisdiction of the United States. Furthermore, they suggest that the concept of jurisdiction was flawed in United States v Wong Kim Ark, leading some to believe jurisdiction can be defined by congressional statute or executive order in order to exclude children born to illegal immigrants, which is where we are today.

At first, I thought there was no path to challenge birthright citizenship as commonly understood, but there it is. The irony is that conservatives who often deride liberal justices for expansively reading into the text of the law will have to do the same in order to move beyond a plain reading or understanding of the 14th Amendment. Nevertheless, any congressional statute or executive order revoking or terminating birthright citizenship for children of illegal immigrants will swiftly be met with court challenges, setting us up for a lengthy court battle.
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Southern Idols

On May 16th, 1905, in the midst of a wave of Civil War nostalgia and Lost Cause militaristic romanticism gripping the South around the turn of the 20th century and racial tensions culminating in Jim Crow and segregationist laws meant to prop up white supremacist ideologies and the prevailing Southern social order, a monument to Lt. Gen. Nathan Bedford Forrest (CSA) astride his mount, King Philip, was dedicated in Memphis, TN in front of an estimated crowd of 30,000.

The dedication ceremony took place in a city marred by the yellow fever epidemics of the 1870s. According to Court Carney, in his Journal of Southern History essay, “The Contested Image of Nathan Bedford Forrest” (August 2001), the epidemic worsened racial tensions in the city because the elite white population lost to the fever were replaced by rural whites who were “less racially tolerant than their urban contemporaries”.

Court continues:

Racial antagonism continued to increase in the first decade of the twentieth century. The Memphis Commercial Appeal published a daily cartoon entitled “Hambone’s Meditations” that featured a crude caricature of an African American who spoke in coarse dialect. Created to entertain white Memphians with the “foibles” of black people, the cartoon reflected the everyday racial slurs that African Americans experienced. Racism was rampant in the nation in general, and in 1905 Thomas Dixon published his bestselling paean to the Ku Klux Klan, The Clansmen. During a period that featured some of the worst racial atrocities in American history, the Klan became a potent symbol of white supremacy–and in the midst of this resurgence of racism, Memphis chose to unveil its bronze equestrian memorial to Forrest. Had Memphis constructed such a memorial in the 1880s, it likely would have reflected the postwar themes in evidence at his funeral–a naturally gifted general of strong religious faith who had overcome childhood poverty to become a wealthy businessman–although the divided attitudes of white Memphians at the time might have tempered the tenor of tributes to the general’s memory. Instead, by 1905, the year of the Forrest statue’s dedication, increasing racial brutality–as well as the new racial and class composition of the city–had helped to unite white Memphians and in turn transform the city’s image of Forrest.

As race relations worsened in Memphis, Forrest’s name became increasingly connected with the Ku Klux Klan for the first time since the early 1870s. Some of the earliest public references to Forrest’s role as Grand Wizard occurred in 1901, when Memphis hosted the annual United Confederate Veterans Reunion. The Memphis Commercial Appeal, for example, mentioned his role as “Grand Cyclops” of the Klan, a connection not alluded to in the public remembrances of the 1870s. Forrest’s image as leader of the Ku Klux Klan became more explicit in the weeks before the 1905 unveiling. An editorial in the Memphis News-Scimitar was accompanied by a cartoon entitled “Forrest Again in the White Shroud,” which portrayed the Forrest statue still under the protective cloth that draped the monument. The cartoonist saw in the shrouded statue the glorious memories of the Klan, and behind Forrest he drew ten ghostly Klansmen raiding the Memphis park. The accompanying article proclaimed that “Forrest has come to his own again.” The Klan, the article explained, was organized “for the protection of the honor and independence of Southern social condition.” “It may be only a mirage of a war-loving brain that people the park again with spectral men in ghostly garb,” the writer admitted, but white Memphians were comforted with the image of Forrest as “that leader whose iron hand held the reins of safety over the South when Northern dominion apotheosized the negro and set misrule and devastation to humiliate a proud race. (pp. 610-11)

The Memphis Commercial Appeal recorded the following opening remarks in the Forrest monument dedication speech by Gen. George W. Gordon:

Ladies, Comrades and Countrymen:

We have not assembled here today to glorify war, that deplorable institution of violence, blood and death. Sed canimus arma virumque.
No. We are not here to exalt the direful art and sanguinary science of human carnage, but to salute and accentuate the name, and to commemorate in language, in bronze and in marble, the masterful prowess and martial genius of Tennessee’s, if not America’s, greatest, most original and dazzling soldier. Yes, we meet to dedicate this enduring monument to the honor and glory of an illustrious patriot and “mighty man of valor” — Lieutenant- General Nathan Bedford Forrest, who for four stirring and thrilling years did brilliant battle for Southern freedom and independence, in what he esteemed and we still regard as an un-avoidable and defensive war.

We are also here to attest in verbal, visible and permanent form the eminent esteem and increasing appreciation in which the noble and heroic services of this anomalous man in the greatest crisis of his country’s history, are held by his countrymen, nearly half a century after the passing of the dramatic epoch in which he lived, thought and acted. And although we may appear to be late in making this acknowledgment, we now declare this durable testimonial, so imposing, so impressive and so expressive of the character and career of the man, to be the permanent proclamation of our veneration for his memory, our gratitude for his services and sacrifices, and our admiration for his valor and genius.

The Forrest monument and its accompanying dedication ceremony reflect the prevailing thoughts and attitudes of Southern culture in Memphis at the time of the monument’s unveiling. Works of art, particularly monuments, are cultural snapshots in time. The creators of monuments design their works of art to elicit specific thoughts, emotions, and memories for the purpose of venerating particular people, ideas, or ideals. The purpose and meaning of the Forrest monument cannot be divorced from the social context of its creation even as cultural attitudes shift around it.

The Forrest monument is a romanticized ode to the Lost Cause of the Confederacy, the Wizard of the Saddle, and the prevailing Southern social order of the time.

On December 20th, 2017 at 9:01 PM, the monument was removed to much local fanfare and acclaim, but, also, significant criticism and opposition, particularly from members of the white community.

The tone, tenor, and content of the objections to the monument’s removal are important because they represent viewpoints still held by a large number, if not a majority, of white Southerners. I take their objections seriously, so I want to respond in kind.

Claim: The Civil War wasn’t fought over slavery (i.e. Confederate monuments shouldn’t be racialized).
Response: No. This belief is verifiably false.

The cause of the Civil War was the institution of slavery. However, you don’t have to take my word for it, you can take the words of the Confederacy itself.

Excerpts from The Declaration of Causes of Seceding States:

Georgia

The people of Georgia having dissolved their political connection with the Government of the United States of America, present to their confederates and the world the causes which have led to the separation. For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property, and by the use of their power in the Federal Government have striven to deprive us of an equal enjoyment of the common Territories of the Republic.

Mississippi

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.
Our position is thoroughly identified with the institution of slavery– the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin. That we do not overstate the dangers to our institution, a reference to a few facts will sufficiently prove.

South Carolina

These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

Texas

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color– a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

Virginia

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, having declared that the powers granted under the said Constitution were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression; and the Federal Government, having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern Slaveholding States.

Excerpt from the 1861 Cornerstone Speech delivered by Confederate Vice President Alexander Stephens:

Our new government is founded upon exactly the opposite idea; its foundations are laid, its cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition. [Applause.] This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. It has been so even amongst us. Many who hear me, perhaps, can recollect well, that this truth was not generally admitted, even within their day. The errors of the past generation still clung to many as late as twenty years ago. Those at the North, who still cling to these errors, with a zeal above knowledge, we justly denominate fanatics. All fanaticism springs from an aberration of the mind from a defect in reasoning. It is a species of insanity. One of the most striking characteristics of insanity, in many instances, is forming correct conclusions from fancied or erroneous premises; so with the anti-slavery fanatics; their conclusions are right if their premises were. They assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct, their conclusions would be logical and just-but their premise being wrong, their whole argument fails. I recollect once of having heard a gentleman from one of the northern States, of great power and ability, announce in the House of Representatives, with imposing effect, that we of the South would be compelled, ultimately, to yield upon this subject of slavery, that it was as impossible to war successfully against a principle in politics, as it was in physics or mechanics. That the principle would ultimately prevail. That we, in maintaining slavery as it exists with us, were warring against a principle, a principle founded in nature, the principle of the equality of men. The reply I made to him was, that upon his own grounds, we should, ultimately, succeed, and that he and his associates, in this crusade against our institutions, would ultimately fail. The truth announced, that it was as impossible to war successfully against a principle in politics as it was in physics and mechanics, I admitted; but told him that it was he, and those acting with him, who were warring against a principle. They were attempting to make things equal which the Creator had made unequal.

Unequivocally, the Civil War was fought over the institution of slavery. As such, monuments to the Confederate Lost Cause are monuments to the institution of slavery.

Claim: Removing Confederate monuments erases history.
Response: Mostly false.

I think this objection is based on many people meaning to say the removal of Confederate monuments erases “our” history. Removing a monument only erases its history in the place where it stood, not necessarily the history of its subject matter. Additionally, the vast majority of monument removal plans are to move, not destroy, Confederate monuments so they are installed in places that better reflect their context such as museums or Civil War battlefields, etc. The United States is not burning books about the Civil War, destroying private works of art, nor declaring all references to the Confederacy to be prohibited.

Claim: Those who forget history are doomed to repeat it.
Response: Unproven.

Regarding this particular subject, this is a dubious claim bound in a catchy aphorism. If slavery returns to the U.S. or its states, once again, attempt to secede from the Union, it will not be because people forgot the lessons of the Civil War.

Claim: After they take our statues, they’ll take our crosses. Where does it end?
Response: Slippery slope fallacy.

The claim is a direct quote from a remark made during the October 2017 Tennessee Historical Commission meeting. Aside from the conflation of modern American Christianity with the Confederacy, but understandable due to historical support for slavery by various American Christian denominations, crosses are and were already under fire in the public square for reasons having nothing to do with the removal of Confederate monuments.

It is possible for society to go too far with the rejection of certain symbols and no person from history is perfect, but we are specifically talking about the Confederacy. It stops there. That’s the answer. Fighting the removal of monuments to the Confederacy is not a hill worth dying on, especially given the Confederacy’s existential association with institutional slavery.

Final Thoughts

It is exceedingly rare to celebrate the losers of a war unless the ideals and beliefs of the losing side are being celebrated, but is the Confederacy worth celebrating? Monuments venerate particular subjects. Why should the Confederacy be honored? What exactly are we honoring when we venerate the Confederacy? I find it particularly interesting the proposed removal of Confederate monuments strikes such a nerve in Southern culture. The question we should be asking is why.

Moreover, it is in the legitimate interest of local municipalities to choose whom and what they venerate and commemorate in their public spaces. As society and culture change, so do the things we celebrate. While it is good and proper to remember and study history, we do not want to celebrate and venerate the parts of history that have no place in our future.

Symbols of the Lost Cause

Recent events in New Orleans surrounding the removal of Confederate monuments and the resulting outcry has prompted me to write an opinion piece that is long overdue.

For context, select the link below to read a transcript of New Orleans Mayor Landrieu’s speech after the removal of the monument to Robert E. Lee, the fourth and final Confederate monument to be removed.

Landrieu’s Speech Transcript

Studying the Civil War was my first love when it comes to American and military history to the extent that I received a special exemption from my alma mater, Rhodes College, to take an adult Meeman Center course on the Civil War at the age of nine. One of my favorite military leaders to study is Gen. Thomas “Stonewall” Jackson. Regrettably, as a native Southerner, I must confess I fell into the subtle emotional and intellectual trap that comprises the “Lost Cause” mythology of the American South and held on to this mythology for some time, well into my mid-20s, which whitewashes the evils of American slavery and the historical ills of the Confederacy.

Southerners like to refer to the Civil War as the War of Northern Aggression. While it is true the northern states were no paragon of virtue when it came to slavery or race relations in the U.S., before or after the Civil War, and aggressively maneuvered to put the southern states into an untenable political position, leading to their secession, and committed wartime atrocities, this does not absolve the South of its role with regard to slavery in the U.S. nor do these circumstances make its cause particularly virtuous, irrespective of the states rights argument, which I find particularly compelling.

States rights, the limited role of the federal government, and the right of states to choose their political association (ideas dearly held by many of our Founding Fathers which I believe were severely damaged by the Civil War) were all motivated and necessitated in the South by the need to legitimize and maintain an economic and political system constructed around chattel slavery and the subjugation of ethnically black people, which can neither be ignored nor excused. It is also technically true the Civil War began due to the economic conflict between the North and South. However, claiming the Civil War began due to northern economic and political aggression reframes the war to provide victim status to the South while bypassing the fact that slavery was the cornerstone of the economic and political system of the South. The victim status of the South is one of the pillars of “Lost Cause” mythology.

The Civil War cost the lives of approximately 620,000 soldiers from both sides of the conflict and is estimated to have cost roughly $3.4 Billion in property destruction and the loss of human capital with another $3.3 Billion dollars from government expenditures in 1860 dollars according to research performed by Claudia Goldin and Frank Lewis. I’ve long pondered whether it would have been better to have ended slavery peacefully in the U.S., similarly to how slavery was ended in the northern states of the U.S. However, these numbers must be contrasted with the number of individuals who died while in slavery and the 4 million people freed from slavery at the end of the Civil War. Moreover, any peaceful end to slavery would require the willing cooperation of southern political leaders and the white voting population and a complete cultural change, possibly taking decades to achieve. I am aware that cotton field exhaustion leading to a drop in crop yields and the adoption of agricultural mechanization would likely play a significant role in potentially speeding up the end of slavery. However, it must be acknowledged that any delay to the end of slavery means telling, not asking, the millions of slaves suffering from the brutal and demeaning terror and horror of slavery to wait.

Martin Luther King, in his Birmingham jail response to an editorial published by a group of clergymen in the local newspaper, addressed this issue of waiting for injustice to end from the perspective of the oppressed.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, “Wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “n****r,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you go forever fighting a degenerating sense of “nobodiness” then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

I say all of this to plainly point out that the symbols of the Confederacy that honor, reverence, and cherish the idea and ideals of the Confederacy are not merely aspects of a historical education, especially outside the appropriate confines of a historical battlefield park, but are political and cultural symbols of oppression and injustice that extend far beyond the time of the Civil War. Jim Crow. Segregation. Lynchings. Must I continue?

I love to study history and Shiloh is one of my favorite military parks to visit, but I no longer go there to mourn the “Lost Cause” of the Confederacy. I go there to witness and reflect on the nature of war, give respect to those who died, and explain to my daughter the significance and importance of the Civil War in our nation’s history; understanding that a tenuously connected group of states who commanded greater allegiance from its citizens than the United States of America emerged from the war to become one nation, bound together in blood and sacrifice.