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Trump No Conservative in Opposing Birthright Citizenship
Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”
Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.
Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.
First, the constitutional text. Section One of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.
Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e. birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e. citizenship of the parents).
Trump and his supporters may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.
Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.
Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a 5-4 majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.
The universal nature of birthright citizenship was made clear in the Amendment’s drafting history. During congressional consideration, critics argued that the text would recognize as citizens the children of aliens. In particular, these opponents wanted to allow the western states to “deal with [the Chinese] as in their wisdom they see fit.” Senator Edgar Cowan of Pennsylvania asked: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean?” Cowan asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?”
Supporters of the 14th Amendment agreed with Cowan’s reading, even though it may have lost votes for their proposal. Senator John Conness of California replied to Cowan: “The provision before us … relates to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.” Conness would lose his Senate seat because of his defense of the rights of Chinese immigrants, but the amendment would go to the states for ratification on the understanding that it granted birthright citizenship to the children of aliens.
Third, Supreme Court precedent. Ever since ratification of the 14th Amendment, the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. The Supreme Court’s reading of the Constitution does not automatically bind the other branches of government or the people — that is another lesson of the Civil War. Abraham Lincoln, for example, rose to prominence by attacking Dred Scott and pledging not to enforce the opinion beyond the parties to the case. But this is one decision of the Court with which he would have agreed.
In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders.
The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” The Justices explained that the phrase “and subject to the jurisdiction thereof” only codified the existing exclusions for children of “alien enemies in hostile occupation,” “diplomatic representatives of a foreign state,” and “members of the Indian tribes.” Only these categories “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” The Court explicitly rejected the claim made today by some that aliens, because they owed allegiance to a foreign nation, were not within “the jurisdiction” of the United States. Instead, the Court concluded that the amendment “in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.
Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.
This article is cross-posted at National Review Online.
Published in Immigration, Law
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The text of Wong Kim Ark says:
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So, I give little credence to sources that are so obviously mistaken.
Let’s look next at the Civil Rights Act of 1866, quoted above, which states in pertinent part: “‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Note that the part about “subject to any foreign power” is describing the condition of the child — i.e. the “person[] born in the United States” — not the condition of his parent. This, too, seems consistent with the interpretation advanced by JY and inconsistent with the claims of his (and my) opponents in this debate.
I’d also like to discuss my major disagreement with JY — his last paragraph, which suggests that we ought not to change the Constitution on this issue. He includes no meaningful argument on this point. Essentially, he says: “The 14th Amendment granted birthright citizenship, and was adopted by Republicans, so we shouldn’t change it.”
Well, times have changed, and we face a new problem — a vast horde of illegal immigrants, having “anchor babies,” and thus placing us in the conundrum of either sending a US citizen child back to his parents’ country with those illegal immigrant parents, or allowing the illegal immigrant parents to stay.
My conclusion is that we ought to adopt a new Constitutional Amendment regarding citizenship. I think it could be simple, like:
Don’t these offending articles follow, “as night the day”? Specifically what ‘things’ can be fixed?
How is it inconsistent again? The child presumably has citizenship in the country of his parents, right?
Then what about this: “Dual citizenship had previously been banned in the United States, but in 1967 the US Supreme Court struck down most laws forbidding dual citizenship.
However, the US government remained disdainful of dual citizenship for some time. To this day, candidates for US citizenship through naturalization are forced to (at least hypothetically) renounce their previous citizenship at the United States naturalization ceremony.
The renouncing of one’s previous citizenship is part of the oath that new US citizens must take, and failing to honor that oath could result in the loss of citizenship in the United States.”
Excuse me for pointing this out, but this whole question is utterly moot, unless Donald Trump somehow becomes president. None of the other GOP candidates even had the guts to bring this issue up before he did, and I’m sure if he fades they’ll forget it as quickly as possible. No democrat will do anything about it either, for blindingly obvious reasons. If by some mischance the Supreme Court gets a shot at the question I’m sure our lord and master, Justice Kennedy, will rule in favor of anchor babies, because no one could possibly dislike babies except for irrational animus. And even if the Court goes the other way, both the democrats and republican will ignore the ruling, in practice. Remember family values don’t stop at the Rio Grande, folks.
I can get on board with that…
Would committing a crime be considered belligerence, thus invasion?
Also, it seems that whenever the question of immigration comes up nice looking people holding American flags are used as the backdrop. It’s never National Organization for the Race activists waving Mexican flags in California, or Somali Muslims in Minnesota demanding sharia, or Somalis in Ohio demanding more luxurious public housing, or anything like that.
Nope, no way, no how. It would upset the open borders narrative.
Plus, it’s interesting to compare the actions of the Mexican government with that of the US.
Mexico went to bat for a convicted murderer, attempting to save his life. The US government lets Americans languish in Iranian prisons without concern- and minions of the regime get angry when this is mentioned. And it plainly doesn’t care about the never ending crime wave brought to us by our uninvited guests.
I disagree with these policies, and think they should change.
AP, bringing some serious sauce to this cook-off!
There have been more than a few mentions of the legislative history of the 14th amendment, but before giving the statements of one or two senators too much credence, it’s important to remember a couple of things.
First, they were contemplating large populations of already born persons, mostly freed slaves and Indians, so statements about “allegiance” can hardly be dispositive about what even those speakers thought about babies born within the US. Nor could they have been thinking about illegal aliens, since there were no immigration restrictions prior to 1882.
Second, we look at the legislative history to ascertain original intent. But mostly what we gain from the statements of the two senators is their personal opinions, not what the rest of the legislators thought it meant. These senators may be expressing a majority view, but maybe not. This is one of the thorny issues involved with originalism. There is never going to be unanimity in the legislature or in the electorate as to what the meaning of a law is.
Think about the so-called Dreamers. Many of these people came to the US as small children, grew up here, and this is the only home they have ever known. What does it mean to say they “owe allegiance” to a foreign power?
I wouldn’t want to decide the fate of large numbers of people on such technicalities.
None of this is to say that I look favorably on chain immigration, anchor babies, or dreamers.
Concur.
Don’t forget the Federal Circuit decision in re Tin Look Sing (1884).
The plaintiff was a 14 year old boy, born in the US to Chinese parents. (By US law, the parents were ineligble to become citizens.) The father sent him to China at age 9 to learn. He returned in 1884 at age 14 and was refused admittance. The court based its decision strictly on the text “subject to the jurisdiction thereof” as the circumstances of his birth were not in dispute.
In short, the court held that those are the specific words that lifted the former slaves from the status of “freedmen” and conferred upon them citizenship.
Furthermore, even state law used the example of a person born in the US to foreign nationals, returned to Great Britain shortly after her birth. Her Uncle was an American citizen and at the time of his death had no other inheritors. The court ruled that Julia Lynch was an American based on birthright citizenship and she inherited the property. (Lynch v Clarke and Lynch, 1844).
I didn’t read Yoo’s OP or point that way.
I read it that the 14th amendment did not distinguish what we NOW know as legal and illegal immigrants.
I’m not sure of all the specific historical details, but how many immigration exclusions were there before (or after) the Chinese Exclusion Act? When did our immigration laws begin to carry quotas for country of origin?
The regulation of our borders and immigration has changed since the adoption of the 14th Amendment.
So the amendment could not have anticipated what we now experience, which is so many words an invasion.
We also did not have the umbrella social services of school welfare, health care, etc. that are attractive to foreigners, so much so that they schedule their birthing dates to be here, rather than at home.
So, the changes regarding Anchor Babies occur either by law, within the confines of the Constitution as it is, if possible, OR by amending the Constitution to serve the needs of our country now.
It will be an uphill climb…
Well what does John Roberts want it to mean?
This is an easy one. The timing doesn’t work. When they are born, they are controlled by their parents whose allegiances are compromised. As they live in this country they acquire merit regarding citizenship by virtue of the imbibing the culture. It is the Hamiltonian condition that they begin to meet (“A residence of not less than five years ought to be required.”). That factor should be weighed in the scales when the child applies for citizenship through the normal, sanctioned process of naturalization. That and the fact that his/her parents violated US law in coming here illegally.
The emphasis needs to be on ‘earning’ citizenship. The US form of government entails special precautions, on which Hamilton was quite savvy (thanks againTCG)
“how extremely unlikely is it that they (foreigners) will bring with them that temperate love of liberty, so essential to real republicanism? …foreigners…tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities.“
Just a simple amendment stating that children born to a mother in the country illegally are not citizens. It could go on to clarify all the unstated ideas that have been interpreted, such as diplomatic exceptions, and to make clear that every other case of birthright citizenship is valid.
How could anyone oppose that with a straight face? Many politicians would WANT to oppose it, but they couldn’t say the real reasons that they have for wanting to oppose it, since there are only two reasons (more votes for the Democratic Party and cheap labor), and if they stated them publicly, it would political suicide in a general election.
This seems like a no brainer, and a definite winner. What am I missing?
I’d say his solution is that the problem needs to be solved without massaging the words of the Constitution to ‘get what we want.’
We can want what we want, but the Constitution does not always permit that.
As far as amending the Constitution, I would only want a clear distinction to permit those who thwart our immigration laws to be defined as hostile invaders.
Such an approach permits the status quo of immigration law (which can be adjusted) to determine the flow of foreigners into the country, and thus make CLEAR the legitimacy of a claim to birthright citizenship.
The bestowing of American citizenship to a child should not be a bonus to a parent’s illegal entry or approved vacation to any one of our 50 states.
YES, we can’t undo the lack of historical clarity, we can only clarify and move on…
That means that current children who are anchor babies, get to stay, With one parent.
Historical family mobility, even current family mobility, does not always “preserve the nuclear family.” Fathers emigrated, fathers moved. Mothers and children stayed behind until circumstances permitted reunification.
Come to think of it, why isn’t this THE Republican perspective on immigration issues writ large, this current debate being but a microcosm:
“how extremely unlikely is it that they [foreigners] will bring with them that temperate love of liberty, so essential to real republicanism? …foreigners…tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities.” – Alexander Hamilton
The immigration debate always seems to hang on how large a ‘contribution’ immigrants make to our society. Lost in the discussion is how unique the American system of government is, and how few are qualified to carry that model forward without proper matriculation to the culture.
And Dreamers are in a quandary because their parents broke the law, and because the US (government and citizenry) betrayed its obligation to enforce the law regarding visas, and employment.
What is embarrassing is, this trauma we face, for deporting families, for splitting families, for being portrayed as inhumane and cold-hearted is because of our own failure as a country.
If the US is a family, there is some serious misbehaving going on in our family, and it is time for tough love and discipline. It will not be painless for anyone.
Just so.
Well, we were overdue for another sneering-at-the-yokels Mike Murphy moment, anyway.
They’re not illegal aliens if it’s a tax.
That’s what the Supreme Court said in the 1884 Elk case! (See post #60 for details.)
Mr. Yoo:
I was born in Hale Hospital in Haverhill, MA. My parents were NH natives and lived across the border in nearby Danville, NH. My birth certificate states that I was born in Danville, NH, a native citizen of NH. My entry into this life in Hale Hospital was immaterial in the legal designation of my nativity. Legal custom dictated that my citizenship followed my parents’ residency. Your interpretation of the 14th amendment would suggest that this was incorrect and that I am a MA native citizen. Interesting.
In addition, what about the “fruit of the poisoned tree” theory, which would suggest that the progeny of parents who have stolen their way into the US cannot result in a legitimate claim on citizenship by their progeny. This was not an issue at the time the 14th amendment was ratified. But it is now.
The above is all remarkably learned and frankly beyond my knowledge of the finer points of immigration history, case law and Constitutional precedent.
In my Neanderthal-like brain however, this discussion would be better served if we could acknowledge that we need to build a serious ——–wall on our southern border.
Work out the social, political and constitutional issues, concerns and nuance later. Until a wall is built this wonderful discussion is simply that, a wonderful discussion of the finer points of the 14th and related amendments, while the flood continues, 7-24-365; year after year after year.
BTW I live in southern California. Sorry to all of you impressive and wonderful legal minds (and I truly mean that), but on this subject in my view, talk is not the answer, and the 14th Amendment is not the issue.
Indeed, Mr. Yoo is mistaken on this point. My mother was born in Lincoln, Nebraska, and it was never a question that she was a citizen of California after she arrived in Sonoma a short while later.
I wonder how they would have responded to my grandma asking them to grant her sixth child Nebraskan-ship on the basis of geographical location.
I’ve only skimmed this, and only the first few pages. But the volume of support for Trump on Ricochet, while depressing, is at least educational. The real downer is what I’ve learned on this thread: so many conservatives seem to have joined liberals in making mush of the Constitution. For liberals it’s a living document. For Conservatives, it’s a suicide pact. For Constitutionalists, this all may be the final nail in the coffin of what was once the Great American Experiment.
If leftists don’t have to follow the Constitution, then neither do we.