Monday, January 16, 2012

Understanding the Birthright Controversy


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Types of Birthright Citizenship
Birthright citizenship is that granted by virtue of one's birth as opposed to being granted by virtue of some actions or status of the individual.  There are two principle types designated by Latin terminology.  Jus soli signifies "right of land" and establishes the right of individuals to claim citizenship because they were born on the soil of the country.  In the case of the United States, "soil" is also expanded to include U.S. Territories, embassies and ships and aircraft flagged by the U.S. The second type of birthright citizenship is jus sanguinis, "right of blood" which grants the right by virtue of the fact one or more of the individual's parents are already citizens of the host country.  The United States recognizes both types of birthright status and grants citizenship accordingly. Immigrants who enter the U.S. legally but are born elsewhere may be granted citizenship by a process called "naturalization".  The requirements in general are, the person must have established a residence for a period of time and must swear an oath of loyalty.  This kind of citizenship and its requirements are not part of the resolution.

The Resolution Problems
Technically, it can be argued birthright citizenship includes both jus soli and jus sanguines claims so it begs the question, what are the implications for Public Forum Debate.  To simply claim, we should eliminate birthright citizenship, would mean every individual born in the U.S. would have to earn their citizenship by other means. This includes jus sanguinis claims.  The CON debater can argue this point and try to convince the judge that he must consider all birthright citizenship in light of the resolution wording which does not draw a distinction.  But realistically, this would be a tough sell.  PF debate is supposed to be "ripped from today's headlines", as I believe I've seen it described at one time.  Though the resolution does not differentiate, based on the premise behind Public Forum debate and in light of recent controversy over the increases in illegal immigration in the U.S. we can assume the citizen PF judge will be predispositioned to listen to arguments for or against jus soli citizenship.  To suggest otherwise would be to suggest the judge's future offspring (if applicable) would need to apply for citizenship on another basis.  So for now, let us consider since the resolution states, "birthright citizenship should be abolished" it really means "jus soli citizenship should be abolished" or more precisely "jus soli citizenship in which neither parent is already a U.S. citizen should be abolished..."

The second issue I see regards the prohibition in Public Forum debate against the presentation of counterplans.  Now, this in and of itself is a tricky rule.  I have seen many times, when debaters try to discuss alternatives the charge is made they are presenting a counterplan and the judge should ignore it.  I question the meaning of the terminology "counterplan".  In my opinion, Public Forum debate was created as a sort of NFL response to criticism against Policy Debate and many of the rules of PF are decidedly "contra-policy".  Counterplans in policy debate are controversial in their own right, although they are now widely accepted and have become part of the standard arsenal of weapons used by the Negative side.  So if the intent of the rule is create a genre of debate that is unlike policy, one should understand the Counterplan is always a Neg argument and it is usually non-topical. The point is, plans in general, have no place in PF. So unless one side is presenting a plan, how can there be a counterplan? The only possible way, would be, if the resolution itself presented a plan.  If alternatives are presented in a debate with no plan, would the alternatives then be called a plan and thus violate PF rules?  Therefore, the bottom line is this. Can either side be allowed to frame a reasonable case which includes one or more alternatives? For example, can PRO establish a case which modifies the resolution and claim "we advocate the abolition of only jus soli birthright citizenship" or "we advocate abolition of all birthright and suggest better alternatives..."?  I think the answer will ultimately depend on your coaches, your regional judges and the skill of the case.  I personally will need to examine each of our debater's cases and see how the advocacy is framed, knowing judges in our area, before I can support a position.

Jus Soli and U.S. Supreme Court
To understand this section I suggest one read the details of the case entitled United States v. Wong Kim Ark which was argued near the turn of the 20th century. This case more or less, deals with the issue to be debated but be warned, the text of the decision is very lengthy and detailed.  It does, however, provide an interpretation of the 14th Amendment, Section 1 which is the issue at stake in this resolution.  Summarized, the Court established the following:

  1. An act (law) must be examined in the light of all of its parts, in consideration of any former acts this act amends, and in light of the history which existed prior to enactment.
  2. The Constitution does not define "citizen of the United States" except as put forth by Section 1 of the 14th amendment.
  3. Under common law, every child born in England to alien parents except diplomats or enemies were considered natural-born subjects of the Kingdom.
  4. The 14th Amendment is affirmative and declaratory, intended to settle doubts and controversies, not to impose restrictions upon citizenship.
  5. It affirms the ancient rule of citizenship by birth, excluding foreign sovereigns and enemies and includes children of persons of whatever, race or color.
  6. The 14th Amendment contemplates only two sources of citizenship: birth and naturalization.
  7. At the time the 14th Amendment was adopted there were no international laws inconsistent with the ancient rule of citizenship by birth within the dominion.
  8. Laws which grant citizenship on foreign-born children of citizens do not over-rule the citizenship by birth.
  9. Before the Civil Rights Act and the 14th Amendment, all white people (except diplomats, etc) were natural-born citizens.
  10. Congress's refusal to grant naturalization to Chinese persons can not be extended to Chinese persons born in the United States and subject to the jurisdiction thereof.
  11. Chinese persons born outside of the U.S. and who remain subjects of the Emperor of China are entitled to the protections and owe allegiance to the U.S. as long as they are permitted to reside here and are subject to the jurisdiction in the same sense as all other aliens and their children born in the U.S. are granted the same rights as other foreign children born in the U.S.
  12. A child born of Chinese parents, who have permanent domicile in the U.S. and are carrying on business and are not diplomats is a citizen of the United States.

In its summary decision, the Supreme Court further clarifies not only the right of citizenship by jus soli but states that any foreigner domiciled in the U.S. is subject to the jurisdiction.  Today, any Court examining challenges to a foreign child's citizenship would simply replace the word "Chinese" with the nationality of the relevant case and the principles remain the same.  Therefore, while it can be argued that any person who has established residence in the United States is subject to the jurisdiction, there is still the proviso stated in part eleven above which hangs on "permitted to reside".  At that time, the Supreme Court made its ruling, there was no discussion of "illegal" immigration and no ruling has ever been issued which deals with it.

The Principle PRO Advocacy
Given the various issues I have discussed, I feel that any PRO case which simply argues, the United States should abolish the granting of citizenship to individuals born on designated property (soil or craft) when neither parent is a citizen of the United States (having been born a citizen (jus sanguinis) or naturalized) will suffice in most circumstances.  This is the debate most reasonably informed judges will be expecting. I think in some cases, one could possibly limit the PRO advocacy even farther and establish an advocacy which applies only to the children of illegal immigrants, but such a position will likely be strongly attacked.  The fact is, most countries in the world now deny citizenship on the basis of jus soli and are not limited to illegal foreigners. 

I will address more on this resolution later...



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