Wisenbaker: Tell me, are you a Roman?

| September 1, 2015

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Gary M. Wisenbaker, Editorial Contributor

Saint Paul’s affirmative response to the Roman guard’s question as recorded in Acts is one of the earliest recorded discussions regarding citizenship in existence.

Roman citizenship in the ancient world was coveted because citizenship had its benefits (in this case saving Paul’s life). And the Romans guarded it jealously.

Sovereign nations do that kind of thing.

Two thousand years later a debate rages over the citizenship status of children born to non-Americans, particularly illegal immigrants, on American soil.

But first understand that the discussion of immigration is not on the national radar because of Donald Trump. While he lowers the level and language of the debate to that more often found in a highschool boy’s bathroom, the policy discussions have been around for years.

083115 3Trump is new to the issue, the issue is not new to the nation.

That said, there’s something to defining the debate within the paradigm of the Fourteenth Amendment since the Constitution nowhere else defines citizenship.

At the end of the War Between the States, Congress had to address the citizenship status of the newly freed slaves. This was complicated by the ante bellum Dred Scott Supreme Court decision which declared that slaves were “property” and could not, therefore, be citizens.

The answer was the Fourteenth Amendment, ratified in 1868.

The relevant language is straightforward: “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.”

From a historical perspective, the amendment only codified the English common law practiced by the federal government since the inception of the republic: defining citizenship on the basis of birthplace (jus solis) as opposed to citizenship of the parents (jus sanguinis).

This is “birthright citizenship”.

083115 4The drafters of the amendment, in order to address concerns about the children of diplomats and enemy soldiers who might be on U.S. territory (neither group being subject to U.S. law), as well as American Indians who were still considered semi-sovereigns who governed themselves, inserted the qualifier phrase “and subject to the jurisdiction thereof”.

In 1898 the Supreme Court in United States vs. Wong Kim Ark, utilizing a strict constructionist reading of the amendment, declared that “subject to the jurisdiction” meant “subject to the laws of the United States”, rather than “subject to the political jurisdiction of the United States”.

The Court chose jus solis over jus sanguinis: If one is born on American soil, then the birth parent(s) is subject to the laws of the United States and the child is, therefore, an American citizen. Parental citizenship or allegiance (unless a member of one of the excepted three classes) is not determinative of citizenship.

Now, however, there is an effort to undermine this very basic tenet of American citizenship law in order to address failed leadership on immigration policy. This failure, however, has everything to do with one side’s refusal to give up cheap labor and the other’s refusal to give up a voting bloc but nothing to do with the natural born new citizen.

Some conservatives and, ironically, strict constructionists such as Trump and Ted Cruz, now suggest that aborting the right of citizenship to those born of a certain class on American soil is a necessary tool to gain control of our borders.

They would, in effect, make parental citizenship a qualifier for U.S. citizenship, a notion completely foreign in the 226 year history of the republic.

083115 2Controlling immigration begins with enforcing the laws on the books and, where warranted, amending the Immigration and Naturalization Act and entitlement programs. Stripping away a constitutional right to citizenship, however, is like a tattoo: it is a permanent response to a temporary feeling.

Depriving natural born Americans of their constitutionally guaranteed citizenship is as shameful a suggestion as was the internment of Japanese Americans in World War II.

This attempt to dim the light of our “shining city on a hill” should be rejected by all who hold the Constitution inviolate and believe in the promise that is America.

GARY WISENBAKERGary Wisenbaker, B.A., J.D. is a native of South Georgia where he practiced law in Valdosta and Savannah for 31 years. He has served as state chairman of the Georgia Young Republicans and Chairman of the Chatham County (Savannah) Republican Party. Gary is a past GOP nominee for State Senate, past delegate to the Republican National Convention and has consulted on numerous local Republican campaigns as well as chaired or co-chaired campaigns for President and US Senate on the county and district level. He is the principal and founder of Blackstone, LLC, a corporate communications and public relations concern as well as Wiregrass Mediation Services, LLC, a general civil litigation mediation firm.

Gary hosts his own blog at www.garywisenbaker.com and recently published his first fictional work, “How Great is His Mercy: The Plea”, on Amazon.com. His opinions are regularly published on ValdostaToday.com and the Valdosta Daily Times.

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