The case against birthright citizenship

President Trump is already hard at work tossing out one of the biggest travesties to ever come out of the federal leviathan.  The concept of ‘birthright citizenship’ states that — if you are born in the United States to non-citizens — you are automatically a citizen.

Federal courts reached and pulled that out of the 14th Amendment to the US Constitution — which had as its original intent rights for freed slaves and Native Americans on American soil. (It’s no surprise. American judges are famous for their flexible, acrobatic jurisprudence.  The so-called *right to abortion* was conjured by the US Supreme Court from the Constitution’s Fourth Amendment barring unlawful search and seizure.  Search warrants. Private Property. Obstetrics.  *It’s all the same thing, right? Um, right?*)

Drive-by media types are busy boo-hooing over what might happen to pregnant mothers who are already violating the law by being in this country illegally.  The new guy in town – state attorney general Jeff Jackson – is joining his department with a bunch of other states in Massachusetts federal court to try and stop Trump’s move against birthright citizenship. (The possibility that Jackson himself may be in violation of state law by doing so is certainly dangling out there.)

Some of the really smart legal eagle types on our side of the political fence are making some compelling arguments against continuing with birthright citizenship.  Here’s John Eastman from The Claremont Institute:

[…] Our argument is straightforward. The text of the 14th Amendment contains two requirements for acquiring automatic citizenship by birth: one must be born in the United States and be subject to its jurisdiction. The proper understanding of the Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by “subject to the jurisdiction thereof.” Was it merely a partial, temporary jurisdiction, such as applies to anyone (except for diplomats) who are subject to our laws while they are within our borders? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?

Think of it this way. Someone from Great Britain visiting the United States is subject to our laws while here, which is to say subject to our partial or territorial jurisdiction. He must drive on the right-hand side of the road rather than the left, for example. But he does not thereby owe allegiance to the United States; he is not subject to being drafted into our army; and he cannot be prosecuted for treason (as opposed to ordinary violations of law) if he takes up arms against the United States, for he has breached no oath of allegiance.

So which understanding of “subject to the jurisdiction” did the drafters of the 14th Amendment have in mind? 

Happily, we don’t need to speculate, as they were asked that very question. They unambiguously stated that it meant “complete” jurisdiction, such as existed under the law at the time, the Civil Rights Act of 1866, which excluded from citizenship those born on U.S. soil who were “subject to a foreign power.”

The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment, noting in The Slaughterhouse Cases in 1872 that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It then confirmed that understanding in the 1884 case of Elk v. Wilkins, holding that the “subject to the jurisdiction” phrase required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” John Elk, the Native American claimant in the case, did not meet that requirement because, as a mem­ber of an Indian tribe at his birth, he “owed imme­diate allegiance to” his tribe and not to the United States.

Thomas Cooley, the leading treatise writer of the era, also confirmed that “subject to the jurisdiction” of the United States “meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”  More fundamentally, this understanding of the Citizenship Clause is the only one compatible with the consent of the governed principle articulated in the Declaration of Independence. 

All of this matters a great deal because on the first day of his second term in office, President Trump issued an executive order, “Protecting the Meaning and Value of American Citizenship,” which adopted the view of the Citizenship Clause I and other Claremont scholars have espoused. It directs every department and agency of the U.S. government to accept our view henceforth as the correct interpretation of the Constitution’s Citizenship Clause. 

This may be the most legally controversial executive order issued by the president on day one. And because of that, it is already being challenged in court, as 22 states have filed a lawsuit trying to block its implementation a little more than 24 hours after it was signed.

In the coming days and weeks, just as with that lawsuit, there will be lots of pundits opining that the president had no authority to issue such an order because the Constitution mandates automatic citizenship for everyone born on U.S. soil, a mandate that cannot be changed with the stroke of a president’s pen. They will contend that the Supreme Court already settled the issue more than a century ago in the 1898 case of United States v. Wong Kim Ark. 

But even if Wong Kim Ark was correctly decided (as Ed Erler points out, it was not), honest scholars must acknowledge that Wong Kim Ark involved a child born to parents who were permanently domiciled in the United States, not those who were only here temporarily or illegally. Indeed, honest scholars will be forced to acknowledge that the Supreme Court has never held that the children of illegal immigrants, or even temporary lawful visitors, are constitutionally entitled to automatic citizenship merely by virtue of their birth in the United States. And they will be forced to acknowledge as true the claim in Trump’s executive order that “the Fourteenth Amendment has never been interpreted [in any formal, binding way] to extend citizenship universally to everyone born in the United States.”

Alas, when it comes to anything related to Trump, there are very few honest scholars. Instead of acknowledging the Supreme Court’s limited, actual holding in Wong Kim Ark, they will point to dicta in which the Court’s majority falsely claimed that the Citizenship Clause codified the old English common law rule known as jus soli—that anyone born on the king’s soil owed perpetual allegiance to the king.  They will overlook that our Declaration of Independence was an explicit and eloquent repudiation of jus soli, stating in its closing paragraph that “these United Colonies…are Absolved from all Allegiance to the British Crown.” They will overlook that Congress did not view Wong Kim Ark as mandating automatic citizenship for everyone born on U.S. soil when, a quarter century later, it extended citizenship to Native Americans pursuant to its power under the Naturalization Clause, an act that would have been superfluous if Wong Kim Ark had already settled the matter that everyone born in the U.S., including Native Americans, were automatically citizens. And they will overlook that when a 1920s guest worker program ended in the wake of the Great Depression and more than a million Mexican workers were repatriated to Mexico, the repatriation included their U.S.-born children. No one at the time claimed that the children were U.S. citizens.

Nevertheless, despite the original meaning of the Constitution’s text, its initial interpretation by the Supreme Court, and its compatibility with the social compact “consent of the governed” political theory of the Declaration, our government agencies have for more than a half-century, without any formal amendment, court decision, or official authoritative pronouncement, been acting as though birth alone is sufficient to confer citizenship. And many children of illegal immigrants or temporary visitors have organized their lives in reliance on those informal views. (President Trump’s executive order does not disturb those interests. It makes the order applicable only to children born on U.S. soil more than 30 days after the order’s effective date, to parents who were unlawfully present, or lawfully but only temporarily present, in the United States at the time of their birth.) 

As a result of this order and the inevitable legal challenges to it, the Supreme Court will now, for the first time, have the opportunity to acknowledge that the Claremont Institute’s long-standing view of the Citizenship Clause is the correct one. With the Court currently composed of more originalist justices than has been the case in more than a century, we anticipate with great optimism a careful and considered assessment of the clause and a restoration of the fundamental notion that ours is a country rooted in consent, not in the old feudal notion of jus soli that was so thoroughly rejected in our Declaration of Independence.[…]

And let’s not forget professor Jonathan Turley, a conservative keeping a lonely vigil on the faculty at my Marxist-infested alma mater, The George Washington University:

[…] “Well, I think the initial argument of the Trump administration might be a little bit different in the sense that you have an amendment that has clarity on both ends, that if you’re born in this country, you are a citizen. But in the middle are these six maddening words that people have been debating over since it was first enacted or ratified,” Turley said.

“I think that members of the Supreme Court may want to look at that,” Turley added. “When the 14th Amendment was drafted, some of the individuals involved in that process, some of the members of Congress said that they believed it did not extend birthright citizenship and that has really fueled a lot of this debate.” […]

Turley went on to state that the Supreme Court could play a role in adopting a “different interpretation” of the 14th Amendment, adding that most Americans don’t approve of birthright citizenship, which could lead to a campaign if Trump loses in the courts.

“The law itself coming out of the courts has been fairly stable since then. But this hasn’t had a lot of treatment by the Supreme Court, so the Supreme Court could adopt a different interpretation. But the Trump administration may win either way. That is, if they lose in the courts, this is going to be playing out right before the midterm elections,” Turley continued.

“Most citizens, it seems like in polls, the majority of citizens do not approve of birthright citizenship,” Turley said. “We’re in the minority of countries recognizing birthright citizenship. That may be what the Trump administration is looking for. If they lose in the courts, they could start a constitutional amendment campaign. This is a wedge issue that they might invite.”[…]