I’m heartily sick of the smug self-righteousness masquerading as constitutional debate over the question of birthright citizenship. It’s not a simple case—on the contrary, the arguments on both sides balance each other out quite effectively, resulting in something like the Quinian Crossword, which can be filled out two different ways, both of them right. Instead of getting serious discussion, though, we’re getting a lot of puffery about how the Trump Administration’s argument is obviously silly and stupid. It’s not. Those opposed to the Administration’s position have good arguments at their disposal. They need to start using them.
Here’s what the argument is about: the Fourteenth Amendment says that people born in the United States “and subject to the jurisdiction thereof” are automatically citizens. The Administration’s position is that this phrase excludes children born to persons residing illegally in the United States. So the question is, what does this phrase “subject to the jurisdiction thereof” mean? It’s got to mean something. And the fact that it must mean something proves that not every person born in the United States is automatically a citizen. All sides agree that the phrase “subject to the jurisdiction thereof” excluded, at a minimum, children of foreign ambassadors and (at least until 1924), children born to members of Indian tribes. These persons were not born “subject to the jurisdiction” of the United States.
Yet many have said that the term simply means subject to U.S. law. George Conway, for example, recently tweeted that it means people who are required to obey criminal law: “To say that ‘illegal immigrants are not subject to the jurisdiction of the United States,’” he said, would mean that “the government wouldn’t be able to arrest them.” And Josh Blackman wrote in the Wall Street Journal that the phrase means “required to follow American laws.” But if that’s what “subject to the jurisdiction thereof” meant, it would have included, not excluded, children of ambassadors and children of Indian tribal members, who—when off reservation or off embassy grounds—are required to follow U.S. laws. So Blackman’s statement makes no sense. The one thing we know for certain is that “subject to the jurisdiction thereof” did not just mean “required to follow American laws.”
This is not surprising. Lawyers deal with different definitions of “jurisdiction” all the time. Personal jurisdiction, subject matter jurisdiction, legislative jurisdiction, adjudicative jurisdiction. The idea that there’s a citizenship jurisdiction (or maybe call it “allegiance jurisdiction”) and a non-citizenship jurisdiction is not at all unreasonable: foreign citizens, for example, cannot be convicted of treason, because they owe no allegiance to the United States. Instead they can be convicted only of sabotage or espionage. When I travel to Italy, I’m required to follow Italian traffic laws. But I am not allowed to vote. In Indian law, the difference between adjudicative jurisdiction (power of tribal courts to resolve legal disputes) and legislative jurisdiction (power of a tribe to pass laws) is a common one.
What about the Congressional debates over the Fourteenth Amendment? Senators didn’t talk much about this matter, but when they did, some said one thing and some said the opposite. Senator Jacob Howard said that it would “not…include persons born in the United States who are foreigners, aliens….” California Senator John Conness, on the other hand, was asked if the children of Chinese immigrants would be included, and he said yes. (He was promptly voted out of office, partly as a result of that.) What does all this mean? Absolutely nothing, because there were at that time no laws against immigration. So all of the debates from that time were discussing the citizenship status of children of persons lawfully present in the United States, whereas the Administration’s point today is that the phrase excludes children of persons unlawfully present. So these debates just don’t teach us a lot.
What about the precedent? The Supreme Court has never ruled on whether the Fourteenth Amendment gives birthright citizenship to the children of illegal aliens. There’s some dicta in some of the cases, but it’s just not been decided. The two big cases are United States v. Wong Kim Ark (1898) and Elk v. Wilkins (1884). In Elk, the Court said that children of Indian tribes are not birthright citizens because they were born subject to the jurisdiction of an Indian tribal sovereign. Nor could they become birthright citizens by renouncing their tribal membership and residing apart from the tribe, because “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” Indian citizenship would have to await Congressional action, which didn’t come about until 1924, some 60 years after the Fourteenth Amendment.
And in Wong Kim Ark, the Court ruled that a child born to Chinese parents residing in the United States were birthright citizens. But, again, those parents were residing in the United States lawfully. What’s more, the Wong Kim Ark case used a theory of citizenship that’s debatable. It relied on English common law concept of “natural allegiance,” by which a person born to the King’s subjects was a subject of the King. Yet as Prof. Edward Erler argues, that theory is not only incompatible with the principles of the Declaration of Independence, but formed the basis of one grievance against Britain that led to the War of 1812.
Another analogy that’s been proposed is to the children born of soldiers of occupying armies. That hasn’t happened a lot, thank god, but it has happened sometimes—in Detroit in the War of 1812, for example. Are children born to the soldiers in foreign armies born “subject to the jurisdiction” of the United States, or of the occupying army? At the time the Fourteenth Amendment was ratified, they were considered born subject to the foreign, occupying sovereign—but are today considered born subject to the native, occupied, sovereign.
In my view, therefore, the arguments balance out to the point that one must make a call based on an informed policy judgment about what the Fourteenth Amendment was designed to do. Yet even here, the arguments are in equipoise. Was the Amendment intended to create what is essentially a reward for breaking the law?—to create an incentive for those who manage to evade the immigration laws and have a child born in the United States because they’ve reached home plate in time? On the other hand, the Abolitionists whose thought led to the writing of the Amendment were firmly opposed to the creation of any third status other than citizen and non-citizen. Southern and western states wanted to do this: to create a status of “freedman” who would be neither a slave nor eligible for citizenship—and the antislavery constitutionalists were opposed to this. There are also good policy arguments that birthright citizenship even for children of illegal immigrants aids assimilation and healthy diversity and limits the problem of having a class of people present in the U.S. who have an incentive not to call the police when they suffer a crime. My own view, however, is that citizenship grants should be strictly construed against granting citizenship in questionable cases.
Yet on the other hand—and as you can see, there are already a lot of hands, here—these policy arguments go more to whether we should change the immigration laws than to determining the correct interpretation of “subject to the jurisdiction thereof.” What about a century or so of practice? Blackman writes, “with over a century of practice, in which all governmental branches have recognized the children of foreign nationals as citizens…this ‘gloss’ on the Constitution cannot be trumped by disputed definitions of ‘jurisdiction.’” Well, maybe—but that’s a remarkable statement for a purported Originalist to make! That’s a Living Constitution argument that tells us the Amendment should be read a certain way to suit modern needs, not an argument about what the term “subject to the jurisdiction thereof” means. Yet there are Originalist arguments that birthright citizenship even for children of illegal aliens is constitutionally mandated. Here’s a good one.
The bottom line is: this is not a simple question, and as a legal matter, it can’t be shrugged off with sneering or smug posing, of the sort that Obamacare’s supporters did when critics pointed to the original meaning of the Commerce Clause. This is a legal argument that deserves serious consideration from both sides, rather than simplistic sound-bitery.
Update: Oh, another place where we’ve seen smug self-righteousness is in the constant comments to the effect of “Trump’s so dumb he thinks he can change the Constitution by executive order!” Well, I can’t speak for what the President thinks, but obviously the President can’t change the Constitution by executive order, and almost as obviously, that’s not what he plans to do.
If and when such an order is released, it will almost certainly do this: it will instruct executive agencies not to recognize the citizenship of persons born in the U.S. to parents present illegally. That’s not purporting to change the Constitution, but it will then set up for a lawsuit, so that courts can determine the legal question. Presidents do stuff like this all the time. Andrew Jackson and Abraham Lincoln used executive branch action to clarify the definition of citizenship, which was ultimately resolved by the courts. An instant’s reflection would reveal the fact that the White House is almost certainly not going to issue an order simply asserting that birthright citizenship is at an end. True, Trump himself understands none of this. But his lawyers will obviously frame an order in a way that does not seek to “change the Constitution.” People are so eager to jump in and scream about how stupid the other side is that they don’t pause for just an instant to consider that maybe the other side has something more clever up its sleeve. This is more proof of my thesis here: that by assuming that the other side’s argument is worse than it actually is, you end up intellectually disarming yourself and doing a disservice to the legal profession and to the public. It’s stupid and self-defeating and you smug folks need to knock it off.
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