Saturday, March 21, 2015

Deuces Wild ... and Foreign Born Americans Too!

In 1790, Congress first exercised its constitutionally granted power to "establish a uniform rule of naturalization." Until Congress acted, from their independence in 1776, the thirteen original States each exercised independent power -- as any Nation might -- to provide rules for immigration and naturalization. 

When Congress adopted the Naturalization Act of 1790, it took three separate steps. 

First, it adopted a uniform rule for naturalization. Second, Congress conformed its new rule to existing State practices. Third, Congress adopted a rule defining certain offspring born abroad to American citizens as "natural born citizens."

That uniform rule for naturalization provided only that a person having resided two years in the United States, and proving that he is of good character, could apply thereon to a common law court, take an oath to support the Constitution of the United States, and he would, upon the court's grant of the application, be a citizen of the United States. 

Excepted from that broad and gracious rule of naturalization, the Act withheld citizenship from any person previously proscribed by a State from obtaining citizenship, except if they were allowed by an act of the legislature of the State that had refused their previous application. As for children born abroad being treated as natural born citizen, the Act provided, "And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens[.]"

Many of us, when young, learned a card game or two. 

If, like me, you played with other children whose logic failed them but who yearned for increased odds of winning, you probably have heard the refrain "deuces wild." In truly pathetically illogical cases, you may have heard multiple cards name wild, not just deuces.  Only the dealer's call counted in that magical transformation. If, on examination of his dealt hand, your buddy, called out "deuces wild," it did not affect the rules, but it gave you a powerful hint about the card in his hand.

In cards, as a social convention, rules and variations are established by the house, or the dealer. If you do not like the called rules, you simply decline to ante up and sit out the hand.  Convention empowers the dealer. Convention allows the dealer to choose whether deuces are magically transformed into wild cards.  

So Congress, as I noted above, enacted the Naturalization Act of 1790. In doing so, Congress declared that offspring born abroad to American citizens were, nonetheless, "natural born citizens." That act, that fact, poses, rather than answers, important questions.

First, if "natural born citizen" status was conferred simply by the fact of one's parentage, then why was Congress compelled to provide such a clarification at all? 

Second, while convention permits the dealer to call the rules in a hand of cards, does a like convention authorize Congress to call "deuces wild," or, more properly, "citizens born abroad are natural born citizens?"

As to the former question, Congress was compelled to act because it was known and understood that a "natural born citizen" needs must have been born in the jurisdiction of the Nation. At the same time, denial of the status of one's offspring as "natural born citizens" might have deterred qualified citizens from engaging in foreign service or the development and enhancement of commercial relationships abroad. (Consider, for example, that John Jay's service to the Nation took Jay and his young family abroad, and that three of his six children were born in Europe.) But with this question openly stated, it becomes obvious that our national legislature was not of the view that one's status as a citizen, even one's status as a "natural born citizen," was a kind of civic genetic characteristic, capable of transmission by parentage.

As to the latter question, there is no convention empowering Congress alone to alter or amend the language of the Constitution. Yes, as Article V of the Constitution provides, Congress can propose amendments of the Constitution to the States for their consideration. The sole role of Congress in the Article V amendment process is the proposal of such amendments. Congress lacks an "imposition power" to unilaterally amend the Constitution. In the case of the 1790 Naturalization act, that imposition -- making foreign-born deuces wild -- exactly describes what Congress attempted ... and what neither convention nor the Constitution authorized Congress to do.

Imagine your reaction as a youth, when your buddy, now the dealer, dealt a hand of cards; then, upon examining his own hand, called out, "deuces wild!" Now he is gaming the system to his advantage. Elementary fairness is breached. 

In the case of "natural born citizen" status, elemental constitutional fairness requires that the language of the Constitution -- not preferences personal or political -- should govern. Whether one disputes the eligibility of a Ted Cruz or a Barack Obama, the Constitution should still be trump.