Asian Americans and Birthright Citizenship
The Fourteenth Amendment, that was proposed and ratified immediately after the civil war is regarded as one of the most important legislations appended to the United States constitution. The Due Process and Equal Protection Clauses that comprise the amendment make it a very valuable support for immigrants and minorities. In the context of the civil war, it liberated the African American slaves and brought equality in the American society, at a conceptual level at least. The fourteenth amendment acted as the foundation upon which the civil rights movement of the mid twentieth century arose. The amendment had been instrumental in deciding the outcomes of such landmark cases as Brown v Board of Education and Roe v Wade (Daniel, p.15).
The section 1 of the fourteenth Amendment is a guarantee of citizenship for those who are either born or naturalized in the United States, ensuring that they enjoy rights to life, liberty and property. It also guarantees all such citizens equal protection of the laws. At the time of drafting this piece of legislation, the minority group of reference is African Americans, who were erstwhile held as slaves. But the pattern of immigrants to America in subsequent decades saw a large number of Asians assimilating themselves into the American society. As the complexion of the American demography evolved with time so too the significance and interpretation of the fourteenth amendment. The section 1 states it in no ambiguous terms that children born on the soil of the United States automatically qualify as citizens (unless it is a case of rare exception). This guarantee of citizenship whose legal term is “jus soli” or “right of the territory” is quite advanced for its time. Such privileges did not exist in continental Europe and the rest of the world. So in this aspect the provisions of the fourteenth amendment are quite revolutionary in their nature and the Congress of late 1860’s deserves much credit for its foresight (Williams, p.14).
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During the decades before the enactment of this important amendment, it was generally accepted in judicial circles that the Bill of Rights was inadequate in certain respects. The Bill of Rights was framed in such a way as to act as a limiting force at the federal level only while giving the states freedom to interpret and alter this broad framework as suited to their regional context. Having said this, the states made very little changes to their constitutions. This is a testimony to the soundness and universality of some of the legislature in early American history. That includes the Fourteenth amendment too (Daniel, p.15).
But the fourteenth amendment was not ratified unanimously by any means. There was strong opposition from some quarters of the congress as they believed that it violated Article 5 of the Constitution. Moreover, they argued, that the proposed amendment did not represent all sections of the American society. This was true to an extent and in the end the fourteenth amendment got ratified due mainly to favorable circumstances in the Congress. (Rubenfeld, p.1141)
The case of Wong Kim Ark v the U.S. government was a corner stone in citizenship rights for native-born children of immigrant parents. Wong was born and raised in the U.S. to Chinese parents. His parents were later to return to China whereas Wong remained in the U.S. Wong worked as a cook in San Francisco. In 1984 he went to visit his parents in China. On his return, he was disallowed entry into the United States. The reason given by the Customs officials was this:
“Wong Kim Ark, although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China” (Kuklin, 1717)
What could have misled the customs officials in stating so could be the Chinese Exclusion Act. This Act prohibited people of the Chinese race from entering United States. Those who are already present were not naturalized to proper citizens. Also, if people from this community were to leave the country even for short term visits, they cannot come back. It might sound highly discriminatory based on an individual’s racial background. But during the first half of the 19th century such were the norms.