Every Immigrant and Child of Immigrants in the United States Should be Alarmed by Trump’s Attack on Birthright Citizenship

Every immigrant and child of immigrants in the United States should be alarmed by Trump’s attack on birthright citizenship to question the eligibility of Kamala Harris to serve as president. The conservative legal attack on birthright citizenship is no longer just a fringe argument. If Trump gets another term, it could well become law, removing citizenship from millions of Americans born in the U.S. to immigrant parents.

Trump has tweeted that “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree. . .”

Almost immediately after Joe Biden announced that he had chosen California’s junior U.S. Senator, Kamala Harris, as his running mate, Newsweek magazine published an article by Chapman Law School professor John Eastman questioning whether Harris is eligible to be president.  Eastman’s argument against Harris’ eligibility stems from his belief that she is not a “natural born” citizen of the United States under the language of the U.S. Constitution because, although she was born in this country, neither of her parents were U.S. citizens at the time of her birth.

Here is Eastman’s succinct statement of his argument against birthright citizenship:

“The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does — and it provides that “all persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.” (Emphasis in original).

This is not a new argument for Eastman or many other “Federalist Society” conservatives.  “Birthright citizenship” — the principal that one become a U.S. citizen simply by being born in the United States — has long been a target of those who want to limit immigration, as well as those who want to keep America white.

The principle of birthright citizenship in our Constitutional law was inherited from the English common law, where it was called jus soli (“right of soil”), in contrast to citizenship based on the principle of jus sanguinis (“right of blood”).

As opponents of birthright citizenship often point out, very few other countries endow citizenship in this way; instead, most countries require that one or both of a person’s parents be citizens of the country before their children can be citizens, regardless of where the childen were born.

The eligibility requirements for U.S. president and vice president are spelled out in Article II of the Constitution:

Wong Kim Ark in 1904

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

The Constitution did not originally define citizenship.  However, in 1868, as part of an historic overhaul of the Constitution in the aftermath of the Civil War known as the Reconstuction Amendments, the 14th Amendment was adopted to clarify who was to be deemed a citizen of the United States. The language of the 14th Amendment 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.”

As Eastman and other anti-birthright citizenship advocates point out, the specific purpose of this language was to overrule the Supreme Court’s Dred Scott decision that Black people were not citizens of the United States.  It was not until the case of United States v. Wong Kim Ark (1898) that this language was tested in regard to whether it applied to a child of immigrants.  In that case, the Supreme Court held, by a vote of 6-2, that under the Fourteenth Amendment, Wong Kim Ark, a man born in San Francisco to Chinese citizens who had a permanent domicile and residence in the United States — and whose parents were not employed in a diplomatic or other official capacity by a foreign power — was a citizen of the United States.  The majority held that the language o the 14th Amendment regarding citizenship did not just apply to African Americans, but should be interpreted in light of birthright citizenship principle of the English common law, which included virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country’s territory. Since that time, numerous subsequent decisions of the federal courts have applied the principle of birthright citizenship under the 14th Amendment to the children of foreign nationals born in the United States.

According to Eastman and many other conservatives, United States v. Wong Kim Ark was wrongly decided or has been wrongly interpreted. Specifically, Eastman contends that it misinterpreted the citizenship clause of the 14th Amendment, which should be understood only as a clarification and solidification of the citizenship status of former slaves and their descendents, not immigrants from China or other countries.

He further argues that the issue in Wong Kim Ark was whether a child born to Chinese immigrants “who had become lawful, permanent residents in the United States” and that “the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.”

Eastman then applies his anti-birthright citizenship analysis to the facts about the parentage of Kamala Harris, asking whether her parents (her mother was born in India and her father was born in Jamaica) were “merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act.”  If that were the case, Eastman argues, “then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers — Jamaica, in the case of her father, and India, in the case of her mother — and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.”

Kamala Harris’ parents, Shyamala Gopalan and Donald Harris, immigrants from India and Jamaica.

Let’s pause for a moment to understand the enormous impact of what Eastman is asserting — and which many other conservatives have also asserted and to which President Trump has now clearly stated his agreement.

First, it would mean that Kamala Harris is likely not eligible to be president (or vice president) of the United States.

Second, it would call into question the citizenship of tens of millions of Americans who were born in the United States but whose parents were not citizens.

Of course, it would also call into question the citizenship of their children and their children’s children, and so on.

I am not going to refute Eastman’s argument here. That has been done by many historians and constitutional law scholars and can be read here, here, and here.

What must be stressed is that the Eastman/Trump argument against birthright citizenship is no longer a fringe idea.  Instead, it is close to mainstream in conservative and Republican legal circles, such as the Federalist Society (which Trump and the Republican Party have given a prominent role in selecting federal judges) and could easily become the law of the United States if Trump gets another term and gets to appoint more Justices to the U.S. Supreme Court. 

Trump has made clear that he wants to end birthright citizenship “one way or another.” If that were to happen, the citizenship of tens of millions of people born in the United States to immigrant parents, and the children of these children, would be in question.

That’s part of what’s at stake in the 2020 Election.

 

 

 

 

 

 

Future Chinese Leaders of America: KUCI Podcast with Oliver Ma and Melissa Fox

FCLA.01
This summer, I had the great pleasure of working with Oliver Ma, a 2015 graduate of Irvine’s University High School and now a history and political science student UC Berkeley, to create a new Irvine non-partisan student group called Future Chinese Leaders of America (FCLA).

Irvine Commissioner Melissa Fox speaking at Future Chinese Leaders of America about the Irvine Master Plan

FCLA “seeks to train young Chinese Americans in politics and inform the Chinese American community of the political issues it faces. During meetings, local leaders/elected officials will speak about a topic of their choice. Then, the students will have a discussion/debate where they are encouraged to think critically and to formulate their own arguments about American politics and society.”

In just a few weeks, Oliver and current Irvine Chinese-American high school students Marvin Li, Ted Xiang, Leo Krapp, Michelle Tang, Michelle Liu and others successfully created this extraordinary club through their own initiative and dedication.

My role in the formation of FCLA was encouragement, mentoring, and connecting Oliver to various California Chinese-American political leaders such as State Controller Betty Yee, California Board of Estimate Chair Fiona Ma, and State Treasurer John Chiang, who spoke at an early FCLA meeting.

Oliver and I recently discussed the formation and future vision of the Future Chinese Leaders of America with KUCI’s program “Ask a Leader” with Claudia Shambaugh.

Please listen here.

Our discussion begins at 1:42 and continues to 29:38.

A ‘Photographic Act of Justice’ for Chinese Laborers at Golden Spike: Chinese Citizens, Asian-Americans Honor the 11,000 who Built the Railroad

Chinese-Americans at Golden-Spike, melissafoxblog.com, Melissa Fox, melissajoifox, Irvine Commissioner Melissa Fox

by Kristen Moulton, The Salt Lake Tribune, reposted with permission.

In what an organizer called a “photographic act of justice,” some 200 Chinese Americans, Chinese citizens and other Asian American friends posed here Saturday on the 145th anniversary of the completion of the Transcontinental Railroad.

1869-Golden_Spike (1)

They were going for an iconic photo of their own, one to match the “champagne” photograph that has come to symbolize the celebration that day long ago when the Central Pacific from the West and Union Pacific from the East met on the windswept desert north of the Great Salt Lake.

The meeting of the rails on May 10, 1869, after nearly five deadly, costly years, linked together the industrial East and the resource-rich West for the first time. A journey that previously took six months by ox-drawn wagon was reduced to six days. The most famous photograph from that day shows hundreds of railroad employees, executives and other celebrators — but none of the more than 11,000 Chinese workers who laid track over the Sierra Nevada, across the desert and into Utah. The Chinese workers’ contribution, said New York City photographer Corky Lee, is “a neglected and forgotten,” piece of American history.

Saturday’s visit and photograph, he said, “is as an act of photographic justice.” The photographer worked with a Utah-based coalition, the Chinese Transcontinental Railroad Commemoration Project, to bring the group together on Saturday. He had the 200, including visitors from China’s Guandong Province, pose in front of the replica locomotives, as he did when a similar group came to the anniversary celebration in 2002.

The group also walked to Chinese Arch, a limestone span several miles from the Golden Spike National Historic Site’s visitor center.

railroad.chineseworkers.01Two of those participating Saturday, brother and sister Michael and Karen Kwan, in 2005 successfully petitioned the U.S. Board on Geographic Names to change the arch’s name from Chinaman’s Arch. Their great-great-great grandfather worked on the Transcontinental Railroad.

Margaret Yee, whose great-great grandfather was a chef for the Chinese work crews, said she felt the presence of the laborers as she and a New York dancer and actress, Wan Zhao, walked together along the rail.

“We came to pay them respect,” said Yee, a former head of Asian American affairs for two Utah governors. “One-hundred-forty-five years ago, nobody recognized them.”

Zhao, an immigrant from Mongolia, has been immersing herself in the history of the Chinese workers and immigrants, and performed a dance of prayer Saturday on the rails.

It’s a bit of sore spot for some in the Chinese American community that they had never been invited to help reenact the driving of the rails.

Norm Nelson, the president of the Golden Spike Association, said members of the Chinese community have long been involved in other parts of the celebration, including the act of laying a wreath on the rails to remember those who died working on the railroad.

But they have not been invited to re-enact the placement of the last spikes. “They weren’t part of that [original] ceremony,” Nelson, of Perry, said.

Lee, however, notes that women also were not part of the original ceremony, although some were present that day in 1869. He notes there are no women in the iconic champagne photo, although women and children in costume are always included in the re-enactment photos.

On Saturday, after Lee took photos of the Chinese American group, those in period costume were photographed.

And then the two groups and hundreds of other celebration attendees were photographed together.

Ze Min Xiao, the main organizer of Saturday’s visit to Golden Spike, said the coalition wants to steadily increase the number of Asians who participate each year.

It also wants more recognition from political leaders, to create a supplemental curriculum for Utah classrooms, and to archive the oral history stories of Asian Americans.

It’s interesting, she said, that the descendants of the Chinese laborers, who were forced to return to China by American law, later immigrated to the United States.

Karen Kwan, who teaches psychology at Salt Lake Community College and is running for the state House, said the railroad workers’ contributions deserve a more prominent place in Utah’s historical consciousness.

“Utah was built by a great diversity of people. We belong to Utah. Utah belongs to us.”

Irvine Chinese School Hosts Inspiring “Immigrants Building America”

immigrants building america

I recently had the honor of presenting a Certificate of Recognition to the Irvine Chinese School and the South Coast Chinese Cultural Association on behalf of the City of Irvine on the occasion of the grand opening of the powerful new photographic exhibit “Immigrants Building America,” a traveling exhibit from the American Institute in Taiwan that features stories and photos of how immigrants from Taiwan and China have contributed to the United States and tells the “moving and inspiring stories of people journeying to a new country, struggling to establish themselves, and contributing their intelligence and hard work to create the vibrant America that we know today.”

The exhibit covers the time period from the mid-19th Century  – when consecutive years of drought in China coupled with the discovery of gold in California led thousands of Chinese workers to travel across the oceans to work in the gold mines, and then in the construction of the railroads, in the American West – to the years of discrimination, hardship, and expulsion under the Chinese Exclusion Act from the 1880s to the early 1940s – to the present, when Chinese Americans are celebrated for their accomplishments and contributions across numerous fields, including journalism, sports, politics, medicine, music, film, architecture, and science.

Among the Chinese Americans featured in the exhibit are Samuel C. C. Ting (Nobel Prize in Physics, 1976), Steve Chu (Nobel Prize in Physics, 1997), Roger Yonchien Tsien (Nobel Prize in Chemistry, 2008), Anna May Wong (first Chinese American movie star and outspoken advocate for Chinese American causes), I. M. Pei (Chinese American architect often called the master of modern architecture), Ang Lee (Academy Award, Best Director, 2005 and 2012), Elaine L. Chao (U.S. Secretary of Labor, 2001-2009), Judy Chu (b. 1953, first Chinese American woman ever elected to the U.S. Congress), Yo Yo Ma (b. 1955, Grammy Award winning cellist), Maya Lin (b. 1959, designer of the Vietnam Veterans Memorial in Washington, D.C.), Michelle Kwan (b. 1980, Olympic and World Champion figure skater), Jason Wu (b. 1982, fashion designer), and Jeremy Lin (b. 1988, outstanding college and NBA basketball star).

Irvine Commissioner Melissa Fox awarding  Certificate of Recognition to Irvine Chinese School

Irvine Commissioner Melissa Fox awarding Certificate of Recognition to Irvine Chinese School

I also had the pleasure of discussing the exhibit – and the crucial role that cultural diversity and immigrant communities have played in the success of Irvine – with the principal of the Irvine Chinese School, Yulan Chung, and the president of the Irvine Chinese School’s Board of Directors, Albert Tseng. The Irvine Chinese School is truly an Irvine treasure.  Founded in 1976, the mission of the Irvine Chinese School is to promote Chinese language learning, preserve Chinese heritage, enhance the understanding of the values of Chinese culture, and to advocate for Cultural diversity in America.  Located in the beautiful new South Coast Chinese Cultural Center in Irvine, the Irvine Chinese School is largest Chinese school in Southern California, with more than a thousand students enrolled in classes ranging from traditional Chinese phonetics, writing, grammar and conversation, to Chinese customs, folklore, painting, calligraphy, performing arts and other aspect of Chinese culture.

Visit “Immigrants Building America” and experience the struggles and triumphs of Chinese immigrants in America and learn about the many contributions of Chinese Americans to building the ongoing and still-unfolding American Dream.  “Immigrants Building America” speaks to every immigrant community and every American.

What: “Immigrants Building America” – Traveling exhibit featuring stories and photos of how immigrants from Taiwan and China have contributed to the growth of the United States.
Where: Irvine Chinese School at South Coast Chinese Cultural Center, 9 Truman, Irvine CA
When: November 2 though December 30, 2013
More information: (949) 559-6868

Click here for an NTDTV.com news report (in Chinese) about the exhibit and the opening ceremonies.