Jed Handelsman Shugerman
Volume 77, Issue 5, 1005-1038
The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. Opponents also argue that the citizenship clause originally implied “permanence,” “loyalty,” and “allegiance” requirements. These assertions would have sweeping implications, opening the door to deportation not only for the children of unlawful immigrants, but also the children of lawful residents later deemed to be “temporary.” These assertions are also historically inaccurate.
To the contrary, the concept of “unlawful immigrants” existed in the 1850s and 1860s, and the congressional debates in 1866 indicated that birthright citizenship would extend to their children. This Article summarizes the early history of the political movement against Chinese immigrants in western states and territories—especially California—leading to state restrictions against Chinese immigrants. This rise of this powerful movement for more direct exclusion, demonstrates that the nation had notice of the modern category of “unlawful immigrants.” In 1866, the congressional debates explicitly acknowledged these restrictions and confirmed that the text would grant citizenship to Chinese immigrants anyway. Similarly, the debates raised pernicious stereotypes about Roma (Gypsy) and Chinese immigrants as “Coolies,” a racist slur that referred to indentured servitude, loyalty to foreign masters, and only temporary plans to stay in the U.S. Nevertheless, members also confirmed that citizenship would extend to Chinese and Roma immigrants’ children, regardless of parents’ “allegiance,” their allegedly temporary intent, or their legal status.