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314 Conclusion Ark was born in 1873 in San Francisco, California. In 1895 he left for a trip to China. Upon his return to the United States, customs officials denied him entry on the grounds that he was not a citizen. Thomas Riordan, an attorney for the Chinese Consulate in San Francisco and the Chinese Six Companies, filed a federal writ of habeas corpus on behalf of Wong Kim Ark, based on Ark having been born in the United States. Riordan also relied on the authority of In re Look Tin Sing (1884), a case very similar to U.S. v. Wong Kim Ark. The court ordered that Wong Kim Ark be released from custody. Immediately, the case was appealed to the U.S. Supreme Court, where Wong Kim Ark prevailed. In its decision, the U.S. Supreme Court relied on the Citizenship Clause of the Fourteenth Amendment.37 Although the principle of birthright citizenship has its roots in the United States about 140 years ago, it is of particular interest that contemporary attention to and awareness of birthright citizenship appeared recently , about a decade ago. Writing in 1997, law professor Christopher L. Eisgruber commented, Until recently it [birthright citizenship] has also been remarkably little known. Many lawyers (and some law professors) are surprised to learn that the Constitution confers citizenship upon the American-born children of illegal aliens. With few exceptions, the vast literature on constitutional theory has largely ignored the principle. Recently, however, politicians have discovered the Fourteenth Amendment’s Citizenship Clause and have attacked it. (p. 55) Not surprisingly, the practice of birthright citizenship is contentious, drawing both proponents and opponents. Peter H. Schuck and Rogers M. Smith (1985) have proffered one of the better-known positions against birthright citizenship (Citizenship without Consent: Illegal Aliens in the American Polity).38 The authors challenge the practice of birthright citizenship at three levels (normative theory, law, and policy). In the same vein, Wood (1999) argues that birthright citizenship for “illegal aliens” is harmful for a number of reasons, including that it leads to an increased number of citizens without traditional American values, creates an incentive for illegal immigration, and leads to higher welfare costs. To be sure, some writers defend the practice of birthright citizenship (e.g., Dellinger , 1995; Drimmer, 1995; Eisgruber, 1997; Harvard Law Review, 1994; Houston, 2000) and maintain that any denial of birthright citizenship is a threat to equality and is unconstitutional. Conclusion 315 The political realm is likely to see attempts to eliminate birthright citizenship . In 1995, the “Citizenship Reform Act of 1995” (H.R. 1363, 104th Congress), would have limited the number of children who automatically become U.S. citizens simply because they are born on U.S. soil. It would have granted automatic birthright citizenship only to: 1. Children born in the United States to married parents either of whom was a U.S. citizen or legal permanent resident; or 2. Children born in the United States to an unmarried mother who was a U.S. citizen or legal permanent resident.39 Congress failed to pass the Citizenship Reform Act. At the state level, on November 13, 2006, Texas Representative Leo Berman (R-Tyler) filed HB 28, which is a direct challenge to birthright citizenship. The bill would have excluded U.S.-born children of “illegal aliens” from receiving • Public assistance benefits, including welfare payments, food stamps, or food assistance from this state or a political subdivision of this state. • Health care or public assistance health benefits. • Disability benefits or assistance. • Public housing or public housing assistance. • Instruction in primary or secondary education [italics added]. • Instruction from a public institution of higher education [italics added]. • An unemployment benefit.40 Subsequently, Representative Berman decided to remove the denial of health care benefits and education from HB 28, commenting that the U.S. Supreme Court affirmed them as constitutional rights. He also noted that these provisions could hurt his bill’s chance of passing (Castillo, 2006). According to the Texas Legislature Online, HB 28 was read for the first (and only) time on the House floor on January 29, 2007, and was referred to the House State Affairs Committee, where it appears to have died in committee.41 Given the escalating anti-immigration sentiment in the United States, it is likely that these forces will make more attempts to eliminate jus soli citizenship. As scholar Michael R.W. Houston puts it, “These [federal] bills are essentially constitutional amendments under the guise of legislation” [18.117...

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