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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
So, Mike, what is this – Lord of the Flies or Children of the Corn?
I presume one born to American citizens abroad counts as a “natural born” citizen. I.e., with those few exceptions jus solis gives a sufficient condition for American citizenship, but not a necessary one; the jus sanguinis principle is a sufficient condition for citizenship.
I was born in Africa. If you really, really don’t want me to be President, just say I’m wrong. I can live with not being President.
Irrelevant. It wasn’t excluded. The law means what it says.
“Whatever is necessary” must not preclude the rule of the written law. (But I suppose it could include a Constitutional amendment.)
Yoo’s an Originalist, and a dern good one. That matters a lot to Conservatism.
Mike L: “If leftists don’t have to follow the Constitution, then neither do we.”
Matty V: Somehow that immediately put me in mind of my favorite Sec of State who, with one fine metaphor, turned America away from alliance with England and towards the independence of the Monroe doctrine. He said,
“It would be more candid, as well as more dignified, to avow our principles explicitly to Russia and France, than to come in as a cockboat in the wake of the British man-of-war.”
Conservatives do not, again, need to come in as a cockboat in the wake of the liberal man-of-war. If they can do it, we can too? Only if we intend to become like them. And if we do, Donald Trump seems like the perfect man to take us there. Many of his disconnected policies, to the extent that they can be deduced, seem more liberal than conservative.
But it’s cheaper by far, and has a positive effect in alleviating the problem.
You wrongly equate the agreement of many with Trump’s aversion to anchor babies as support for the man in general. Not so. Our contempt for ABs rests on its intrinsic demerits.
Also, constitutionalism is eminently to be preferred if you are winning the arguments against those forces trying to change the Constitution by judicial proxy. But we lose every battle. Every one. So reasonable folks decide enough of playing the patsy; if the Constitution is going to be malleable, we will be the one’s to reshape it, not the Left.
That’s at issue, what it actually says, what it actually means. Especially the phrase, “subject to the jurisdiction thereof”.
Some fairly bright minds disagree with John Yoo on the meaning of the Constitution here. The Constitution is not in fact clear. It does not say, “Anyone born on American soil under any circumstances is a citizen.” So the charge that those who think it does not support birthright citizenship are throwing out the Constitution is simply untrue, and rather ugly.
My only concern here is that the lack of an anchor baby phenomenon in the 1800s does not affect the meaning. TeeJaw says it “would have been excluded” in other circumstances, meaning that in actual circumstances it wasn’t excluded.
New circumstances may call for a new meaning, but they don’t change the old one.
If the old meaning does in fact exclude the anchor baby phenomenon, or gives Congress the option of doing so, I’m not complainin’.
You will find the excellent post on the Member Feed:
http://ricochet.com/a-challenge-to-professor-yoo/
addresses your issues, possibly to your satisfaction.
Yeah, I’ve just been there. I don’t have a clear answer. But I am satisfied that I myself cannot simply go along with Yoo’s conclusion regarding what that meaning is.
Oh man. I really wanted to buy the argument that “subject to the jurisdiction thereof” meant fealty. But you convinced me, at least, John.
I understand your frustration, but I hope you don’t really mean this.
I think that there is room for a conservative SCOTUS justice to say something like this on the issue:
My hypothetical justice could then proceed to interpret “subject to the jurisdiction thereof” to exclude the children of parents in the US illegally.
I wonder if Clarence Thomas might take this approach, and maybe drag Scalito with him?
Some of the commenters have gone far afield with references to state residency practices, etc. as proof that Yoo doesn’t know what he is talking about.
Let’s stipulate that Yoo might be wrong (if you read his analysis as stating that the Ark decision’s rationale for jus solis citizenship was the correct disposition of case). But that does not address the problem of precedent and how and why you overturn “settled law” even if wrongly decided. This is the Conservative dilemma. You may not like the rules, but the game is more fair if the rules don’t change. Conservatives value stability in rules, even bad rules so long as those rules do not insure the destruction of society.
The reality is that in a country of 300+ million people, the phenomena of 400,000 anchor babies getting citizenship is not the problem. The problem is what the government then does regarding their immediate and extended families, the health, welfare and tax benefits. The country has problems because of entitlements for both citizens and non-citizens. If those entitlements are reduced or eliminated, the baby’s citizenship status ceases to be a significant source of concern.
Regarding state citizenship:
I moved a couple of years ago from Pennsylvania to North Carolina. I studied really hard and was able to pass the NC citizenship test on the first try. I was so worried that if I failed they would send me back to Pennsylvania, and I was tired of those cold winters.
Planet of the Apes
The Camp of the Saints
Liberia was founded and chartered in 1862 as a solution to the problem of what to do with the freed black slaves. At the time the Civil War began, it is estimated that three fourths of the population of South Carolina were slaves. That’s a lot of people. Jobs, homes, schools, and everything else.
Liberia’s history is significant in relation to the Fourteenth Amendment, originally passed in 1868, because its existence is a reflection of the mood and concerns of the American people after the Civil War. Many people felt that the United States should deport the slaves back to Africa.
This is what is bothering me about today’s Fourteenth Amendment interpretations.
The Fourteenth Amendment was conceived as a way to keep families together.
How ridiculous now to see it used as a means of separating families–we are talking seriously about keeping the “anchor babies” here and deporting their parents.
There is no universe in which that is a sane or humane step to take.
Moreover, we had experienced twenty years prior to the Civil War of waves of immigration. In 1860 roughly 10 percent of the population of 31 million Americans were foreign born. The Fourteenth Amendment was also a labor-saving device. We wouldn’t have to worry about the children of immigrants having to go through the naturalization process.
This was the context in which the amendment was conceived and passed.
The circumstances have changed, and the amendment no longer works.
MarciN, Liberia was founded in the 1820’s; that’s why it’s capital is named Monrovia after the fourth US President. Lincoln did want to resettle the slaves after the Civil War, hopefully in Central America, because he thought racism was “bred in the marrow” of white Americans. The purpose of the 14th Amendment was to make the commonly understood concept of citizenship in the northern states universal to all Americans, especially freed slaves. It was taken on a tangent during it’s ratification debates to address racial animus in other contexts, e.g., against Chinese in California, assimilated Indians, Gypsies or other persecuted groups. The blanket terms used were not intended to address non-racial discrimination in other, rational contexts. That is why the drafters put so much emphasis on the distinction between complete allegiance versus limited or dual allegiance of the parents.
I shouldn’t have said “founded,” but (from Wikipedia):
The only point I was trying to make was that the problems the Fourteenth Amendment concerned were different back then.
A question for Professor Yoo if you return to these comments: were there any federal laws regarding immigration and naturalization between the Alien and Sedition Acts [which I believe were repealed] and the Civil Rights Act of 1865?
What was on the NC test?
I imagine that the PA test is: Can you find a Pat’s cheesesteak?
In case JY does not check in soon, the answer is yes. There is a discussion of this in the Wong Kim Ark case (click the case name to read it).
Thanks Az Patriot!
MarciN – thanks for the clarification. I did not know that Liberia was addressed during that period. Interesting fact to use when the USA is accused of imperialism. We started giving it up even back then.
like that will ever happen…
The war on poverty has been won, now we need to wrap these programs up.
This should be the Republican position on immigration:
“We need only one visa category: a becoming American visa category. The criteria is simple:
Obey the law
Willing to learn English
Demonstrate appreciation and understanding of America’s founding principles
Pledge allegiance and fidelity to America
Demonstrate ability and willingness to work hard in order to “increase wealth and strength of the community” (James Madison).”
Anyone who meets this criteria, regardless of skin color, race, religion, culture, or family name, is an American! We welcome you!”
http://townhall.com/columnists/helenraleigh/2015/08/26/a-real-conservative-manifesto-on-immigration-n2044019/page/full