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The Shaky Case for Birthright Citizenship
President Donald J. Trump exercised his uncanny ability to suck the oxygen out of the room by his bold tweet last week that the United States should do away with “so-called Birthright Citizenship,” perhaps even by executive order, because it “costs our Country billions of dollars and is very unfair to our citizens.” Trump insists that children of illegal aliens born in the United States do not become citizens of the United States by their birth alone. The counterattack, mounted by anti-Trump crusaders like Bret Stephens of the New York Times, has been equally categorical: “Shame so-called conservatives and ‘originalists’ can’t respect the plain text of the U.S. Constitution.”
The issue is a lot more complicated than either of these hyperbolic assertions. To put the problem in context, let’s start with the relevant text of the Constitution—Section 1 of the Fourteenth Amendment, adopted in 1868, which reads:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In legal scholarship, the battle over the scope birthright citizenship is commonly said to turn on alternative readings of the cryptic phrase “subject to the jurisdiction thereof.” Defenders of birthright citizenship give this phrase a narrow reading. Thus Professor Josh Blackman of the South Texas College of Law, writing recently in the Wall Street Journal, insists that this phrase “subject to the jurisdiction thereof” applies chiefly to children of diplomats born in the United States, because they are generally immune from the enforcement of American laws. Originally, that phrase also excluded Native Americans born on tribal lands, who were considered citizens of their own sovereign nations but not of the United States. That exclusion was undone by the Indian Citizenship Act of 1924, as Congress has the power to extend citizenship to persons who do not receive it under Section 1 of the Fourteenth Amendment.
On the other side, Professor Matthew Spalding of Hillsdale College, also writing in the Wall Street Journal, insists that the phrase “subject to the jurisdiction of thereof” has a far broader reading that covers all individuals that did not owe “full political allegiance” to the United States because they owed allegiance elsewhere. He notes that the 1873 Slaughter-House Cases support that position when it says: “The 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.”
In truth neither of these warring interpretations makes a whole lot of sense. Blackman’s view would lead to the odd outcome that children of foreign diplomats born in the United States would become citizens if Congress by law lifted diplomatic immunity for infractions like parking tickets and petty theft. On the other side, it seems odd that the children of stateless aliens illegally present in the United States could become citizens of the United States because their stateless parents are not citizens or subjects of foreign nations.
Clearly, a more systematic interpretation is needed. The point of departure is the simple but powerful proposition that the first sentence in the Fourteen Amendment overrules the infamous 1857 decision of Dred Scott v. Sandford, in which Chief Justice Roger Taney, in some of the ugliest language ever written, denied that slaves of African descent could ever become citizens of the United States. Citizenship would, of course, entitle them to all the privileges and immunities of citizenship, such as the right to petition the national government, which are not extended to aliens who as “persons” residing in the United States receive only the more limited protections of the Due Process and Equal Protection Clauses.
The granting of citizenship is thus a preferred status, and the question is who gets it. Clearly the clause is not limited to slaves born in the United States, but also extends to persons of different nationalities born in the United States, e.g. Chinese, so long as they are subject to the jurisdiction of the United States. Nor does the Fourteenth Amendment, override prior citizenship law, based on prior British practice, which extends citizenship to children of American citizens (or even one citizen) born either in the United States or abroad, although persons born abroad have to take complex steps to “acquire citizenship” in the United States. Accordingly, it is undoubted that the child of any legal alien born in the United States is also a citizen of the United States. Thus the 1898 case of Wong Kim Ark emphatically held that the federal government could not exclude from entry to the United States a child born of Chinese parents lawfully resident in the United States when he sought to return from China. The obvious rationale for this result is that when the United States seeks to encourage aliens to take up residence in the United States, one powerful inducement is to secure the citizenship of their children at the time of birth. Yet there is not a single reference to the children of illegal aliens living within the United States in Wong Kim Ark. Now the rationale of Wong Kim Ark cuts the other way. By definition, the United States has not recruited illegal aliens, which is why they could be kept out of the United States before they arrive—or deported once their illegal status has been verified, perhaps after a legal hearing that meets the requirements of due process that attaches to all persons in the United States.
At this point, the discussion should turn from the words “subject to the jurisdiction thereof” to a reading of the Fourteenth Amendment in light of its broader context. It is a crude misunderstanding of “originalism” to assume that the meaning of a Constitutional provision is limited to an explication of its written text. Huge portions of constitutional doctrine have long been inferred by “necessary implication,” to lift a phrase from the 1871 Supreme Court decision Collector v. Day, which developed the judicial doctrine of sovereign immunity that exempted the salary of a state judicial officer from federal taxation. The introduction of sovereign immunity as a constitutional principle was only one of a large set of constitutional doctrines dealing with the scope of federal-state relationships. Another example of a doctrine read into the constitution involves the recognition of the state’s “police power”, which limits the protections of the Bill of Rights in the name of the “health, safety, morals, and general welfare” of the public at large, or the doctrine of unconstitutional conditions that makes it clear, for example, that the government cannot condition the use of public highways on the willingness of drivers to waive their Fourth Amendment rights against unreasonable searches and seizures. These doctrines, which determine the meaning of the Constitution from both text and by implication from background principles, were articulated long before the term “originalism” was introduced into the constitutional lexicon by the opening sentence of Professor Paul Brest’s influential 1980 article, “The Misconceived Quest for the Original Understanding.”
To see how this approach undercuts the case for birthright citizenship, let’s start with the question of whether a child born of a tourist lawfully in the United States on a limited time visa becomes a U.S. citizen at birth. The case does not fall within the first sentence of the Fourteenth Amendment because the mother of that child is a not a resident of any state at all. Her sojourner status leaves her a resident of whatever place she was before she entered the United States. The child’s residence follows its mother’s, so the child is not a citizen of any state or of the United States either. That proposition was virtually universally held before the adoption of the Fourteenth Amendment. Nothing in the text, structure, or history of the citizenship clause mandates a change in that meaning, which would only encourage opportunism on the part of parents who want their children to be American citizens. Conversely, it would be highly inappropriate for the United States to insist that any such child born in the United States becomes a citizen against the will of his or her parents.
The case for citizenship is made weaker if that sojourner has entered the U.S. illegally. No residency in any state is established. While it makes perfectly good sense to protect these persons from arbitrary arrest or arbitrary seizure of property under both the Due Process Clause and Equal Protection Clause, it makes no sense to give them additional rights that citizens receive to occupational freedom or the ability to acquire property under the Privileges or Immunities Clause. It is a general maxim of law that no person should be able to profit by his own wrong. That principle should be read sensibly into the Fourteenth Amendment to prevent the profit that parents hope to obtain for their children by illegally entering or remaining in the United States.
It may be unwise and improper to change this rule given that it has been respected in practice for 100 years or longer. Yet that argument is only half correct. It would be a tragedy of inexcusable proportions to strip citizenship from the children of illegal aliens on whom it has already been conferred. The dislocations that would result are utterly unacceptable. But that argument does not apply going forward, where it can be made perfectly clear that the children of illegal aliens will not acquire citizenship status but are instead subject to the same immigration rules that govern their parents. At that point, there would be no odd separation between the fully protected status of the child and the utterly unprotected status of the parents.
Quite simply, the general principles of international law that reject birthright citizenship were not abrogated by the Fourteenth Amendment. To be sure, Congress could decide by statute to confer citizenship on the children of illegal aliens, just as it did with respect to Native Americans in 1924. But that is a tough policy decision; it is not a command of the citizenship clause of the Fourteenth Amendment.
© 2018 by the Board of Trustees of Leland Stanford Junior University
Published in Immigration, Law
Thank you.
I know I’m biased in favor of your argument, but it sounds pretty solid to me.
Sounds utterly stupid to me. Perhaps in the case of a transient passing through the US the logic of “jurisdiction” as “owing allegiance to” makes sense. But it seems rather obvious that someone who chooses to settle down in the US on a permanent basis has by their action selected their country of allegiance, and to be placed under its “jursidiction”. And that’s the thing isn’t it. Illegal aliens have chooses the US as their country even if our government hasn’t chosen them. Their intentions are made clear by their actions. They live here, they work here, they raise their children here. Much more commitment is hard to show.
That doesn’t actually seem obvious to me. Wouldn’t choosing to be “placed under the jurisdiction” of a country in which you reside illegally be tantamount to asking to be deported? Aren’t illegal aliens in fact doing their best to avoid being under the jurisdiction — that is, the effective governance — of the country in which they reside?
When I had children living at home, they lived under my authority: I had jurisdiction over them. If someone else’s child had climbed in my basement window and secretly taken up residence behind the boiler, doing his best to avoid detection, would that child be appropriately considered under my jurisdiction? I’d certainly have the right to eject the poor lad if I discovered him but, absent that, he’d be living outside of my jurisdiction and in a manner that prevented me from exercising authority over him.
I think people how are actively working to avoid being under legal authority are on thin ice claiming that they are nonetheless subject to that authority — under that jurisdiction — when it works to their or their children’s advantage to do so. I agree with Mr. Epstein that the citizenship status of the children of illegal immigrants is not obvious given the text of the 14th Amendment.
Thank you for the examples and examination of this issue. You’ve convinced me, Professor Epstein.
Seems sensible.
Correct me if I’m wrong here, but it’s @benshapiro, @RichardEpstein, and Andrew McCarthy against @DavidFrench and @JohnYoo.
I heard Yoo and Epstein on a Law Talk a while ago…I believe I leaned with Richard, even though I highly regard them both.
John Yoo will have to write a post.
At the very least we should listen to the conversation.
I can’t help but see these creative arguments against something that has always been generally accepted, not to mention having ancient English roots, as a siren song for conservatives – leading us away from the textualism that in the long run is a far better protection for the Constitution.
Citing dicta from cases dealing with other subjects, citing vague ancient legal maxims cherry picked to get the result we like (birthright citizenship is an old maxim, too, after all), citing (as I have seen in other places) some newspaper article quoting a senator, etc….all to try to avoid what the text says…those are things we used to criticize the left for…those are the tools used to legislate from the bench. Remember when we were against that?
I can understand not liking birthright citizenship. Do what we always tell the left to do – use the Amendment process.
I guess I don’t see it particularly creative to wonder what “under the jurisdiction of” means, in the context of people who have entered the country illegally and are remaining here as criminals — any more than I’d think it creative to say that the newborn children of an invading army (just run with it) also wouldn’t qualify as citizens. This seems like a pretty basic question, not an opportunistic parsing of plain text in an effort to achieve a non-obvious outcome.
I think you are assuming the term “resident” as a synonym for “subject to jurisdiction”. I think the analysis would be stronger without those sentences or with additional sentences expanding on what “resident” means. The text of the 14th implies (for states) that being a resident is a necessary condition of citizenship of that state. What did “resident” mean then? Now it means you pay for electricity in a household.
I think it is important that the text of the 14th includes two similar phrases “subject to the jurisdiction thereof” and “within its jurisdiction”. Two phrase, because they clearly have two meanings. Thus “subject to” cannot mean “within”. Thus persons born *within* do get the same entitlement as those born *subject to*.
For me “subject to” means which government controls your life. If a government can draft you and send you to war, then you have skin in the game and you are full citizen. Everyone else is just a visitor.
Well, I believe it is still illegal for illegal immigrants to work here, although some people seem to forget this. I believe even people in the United States on a student visa or something similar have trouble working here, as I believe the Democrats made complaints about a young Melania Trump working in the United States.
Illegal immigrants also live here illegally. Raising the children of the entire world through free education and often free food and free medical care in just a tax on the citizens. I don’t think the 14th Amendment mentions socialist ideas and ideals.
Why should a country with a certain culture be forced to accept people who might dislike that culture? Should Israel be forced to make citizens of the children of terrorist parents? Should Japan be forced to make citizens of the children of parents who do not speak Japanese? I believe that Austria requires residents to live continuously in the country for 15 to 30 years before being eligible to apply for citizenship.
US Census populations
1870: 40mm
1880: 50mm
Estimated number of residents here illegally in 2018: 12mm
Is it any wonder why the idea of birthright citizenship was not top of mind when the 14th Amendment was passed?
A detailed analysis of this issue by my friend Bookworm, who among other things is a lawyer.
http://www.bookwormroom.com/2018/11/04/14th-amendment-jurisdiction-birthright-citizenship/
That is magnificent. Thank you!
Instead of arguing about how many angels dancing on the head of a pin are subject to the jurisdiction of the pin, the 14th Amendment should be amended to extend birthright citizenship to the children of citizens, no matter where they are born, and nowhere else. Period. The piece of dirt that happens to be under a kid when he is born should be totally irrelevant. The 14th Amendment had the laudable goal of protecting the rights of newly freed slaves, but the language used to that end was simply wrong and idiotic. Change it.
Just have to respectfully disagree with you here, Henry. I think the meaning is fairly clear.
There may, of course, be factual situations for which the language is difficult to apply – an invading soldier, ambassador’s nephew has a baby while visiting here, or whatever. But those situations arise with nearly every law, and the fact that they do does not render the law ambiguous such that a court ought to have free reign to read all kinds of other meanings into it.
Burglary, for example, is commonly defined as trespassing by force, stealth, or deception into an occupied structure for the purpose of committing a crime therein. That’s a pretty clear statute, and everyone knows basically what those words mean. The case may arise, of course, where it’s not clear if it applies – whether the structure is occupied, whether force, stealth or deception was used, and so on. That’s where the judges earn their money. But just because you can imagine a scenario where it’s unclear whether it applies, that does not mean the law is ambiguous for all cases. A guy breaks a window with a hammer and goes in and steals a TV while the homeowners are asleep upstairs? Clearly burglary. I think a child born in the United States, whether within our borders legally or illegally, is clearly subject to the jurisdiction of the United States. Born to parents of diplomats with diplomatic immunity, or on an Indian reservation where US jurisdiction is questionable? – Not so clear, but also irrelevant to situations where those difficult facts are absent.
Again, my argument is that conservatives should cling to textualism – interpreting statutes according to their plain everyday meaning, taking into consideration the meaning of the terms at the time they were drafted, but not going off on hunts, except as an absolute last resort when the everyday meaning truly cannot be discerned, through the comments of senators, contemporary pundits, newspapers, irrelevant caselaw, to to get to the “real” meaning, etc…Doing that turns the law into a code, hidden behind curtains of legal maxims and minutiae, that can only be broken by jurists who have the resources and wherewithal to get behind that curtain, sometimes only after years of litigation. The law is lost to the common man when we do that.
Some have, some haven’t: a % of them will work in the US temporarily to make money, and then return to their countries of origin.
There is also “birth tourism”, in which a woman from, say, China, will come to the US temporarily (and legally) to ensure that her baby becomes a US citizen. I haven’t seen this case discussed very much.
Mr. Epstein could write 10000 words on this subject and none of them would do more to support an argument against birthright citizenship that is clear and defensible to any American than those emboldened above.
It seems to me that there a couple of additional points that would support the position that birthright citizenship for illegal aliens is not mandated by the 14th Amendment. First, the very use of the word “jurisdiction” implies that Congress can have a role in determining who is “subject to” or “within” the jurisdiction of the United States. Article III states that the Supreme Court has “original jurisdiction” only over a limited subset of cases. All other federal jurisdiction, including the Supreme Court’s appellate jurisdiction, and the jurisdiction of such lower courts as Congress may establish, is for Congress to confer. Also, Section 5 of the amendment expressly gives power to Congress to enforce its provisions.
This, to me, supports the conclusion that Congress can regulate who is a person “subject to the jurisdiction” of the United States for purposes of determining who is entitled to birthright citizenship. (I give no credence to the notion that the executive branch has any say.) That being said, given the history of how the amendment has been interpreted over the past 150 years, I think it would be troublesome for Congress to do so, because it would potentially set up a scenario where birthright citizenship would pop into and out of existence based on whichever party is in power. The better, if far more difficult path, would be to pass an amendment clarifying the circumstances in which birthright citizenship is conferred. In the extremely unlikely event that such a thing were to occur, I would frankly be just as eager, if not more, to disallow citizenship for children born from birth tourism as compared with children of illegal immigrants from the south.
This is correct. Of course congress can set limits. I am glad Trump is going to force the issue. No doubt a judge will nullify any executive order by Trump but by the time it gets to the supremes, they will likely say that Trump can’t but congress can.
But doesn’t practice reveal much more about the situation than the theory of words in an abstract context? The daily practice of life I think resolves the issue of ambiguity. We have treated them as residents, they treat themselves as residents. If it walks like a duck, quacks like a duck why isn’t it a duck? It seems to me people are purposefully reading in ambiguity into a situation that has been resolved through peoples daily lived lives. Like Grammar Nazis insisting that some pronunciation or word usage is invalid because of how they read the definition in a dictionary vs. the actual usage of the word in daily life.
No, but they accept that deportation is a possibility. They try to avoid it but everyone accused of a crime tries to avoid the legal ramifications, and that doesn’t mean they are denying governmental authority. They are subject to the law, and can avail themselves in court of all legal arguments and special pleading to convince a judge or jury that they do not merit conviction and punishment. That is the basic right of any accused.
Val, by your reasoning why is citizenship limited to children who are born here? It is not they, but rather their illegal alien parents, who “treat themselves as residents.” Why aren’t the parents therefore citizens? Unless you mean to say that the 14th Amendment is just completely arbitrary and stupid, in which case I agree with you.
As Epstein puts it, no person should be able to profit by his own wrong. Even conceding for the sake of argument that entering the country illegally is a “wrong” within the meaning of that old maxim, remember the question surrounds the newborn child’s citizenship, not the parent’s. Surely the baby hasn’t done anything wrong.
And if you are going to elevate that old maxim (arbitrarily above others, such as birthright citizenship) and attribute the “wrongs” of parents to their children, how far are you willing to take that? How many generations back can you go? Does it give Native Americans, or African Americans cause to demand reparations?
Is it not infinitely better to simply interpret the Amendment language as it’s written and give it its basic meaning, and not open up all these other questions?
Well like I said I think if one accepts the interpretation of jurisdiction as “loyalty”, which I think is very debatable, the case is strongest with transient travelers, especially tourists whose very actions indicate a planned disposition to return to their country of origin, indicating a continued attachment to it. With respect to people who change their minds or maybe never intend continued residency, but just long medium to long term residency things I agree get iffy. But this is why I think having a simple rule which is what we do have with birthright citizenship is good. Switching to this poorly defined notion of loyalty or allegiance is absurd, and will require the Government to engage in all kinds of judgement about intentions and subtle human relationships between various groups.
I guess one can argue that just denying birthright citizenship to all aliens is as simple as giving it to all, but then the argument arises as to why this is a better policy? Which is the one thing that still eludes me in all of this. Why shouldn’t we just keep doing what we have been doing and what arguably has worked for over 200 years of American Common Law practice? It ain’t broke so why all the arguing about breaking it to fix it?
D.A.V., you and I will have to respectfully (and I do appreciate that part) disagree. When numerous scholars — including Constitutional law professors with a respect for originalism/textualism — disagree on the precise meaning of “under the jurisdiction” and its application to illegal aliens, I think we have to concede that the matter is unclear.
I think the analysis linked in #14 is quite good and, if not necessarily dispositive of the underlying issue, at least challenges the notion that the issue should be considered settled.
The answer is simple. It assumes that adults who come to reside in America will have access to a naturalization process, and by having birthright citizenship established you circumvent any ambiguity of citizenship in case such a naturalization process hasn’t occurred or is not well formalized. Birthright citizenship saves American society from the creation of any permanent none citizen population residing within our borders.
What I would argue is arbitrary and stupid are our immigration quotas which are the source of all these inconsistencies and legal frustrations. Simply go back to the 19th century model of immigration and all the problems are resolved. People can come and live here and work freely. They can apply for citizenship in time. If prior to citizenship they are found guilty of crimes they may be deported. Their children born here are natural citizens. No one makes you come to America, no one makes you stay in America and we only throw you out when you violate the law (maybe).
I would like to point out that many of the troubles arise from our willful choices to abrogate this natural system and impose one with arbitrary standards. But sadly people’s view of sovereignty is that it allows us to be arbitrary and then demand that we be so to prove our sovereignty. A vicious cycle of stupid decision making then ensues.
V, how is this distinct from a policy of open borders and uncontrolled immigration?
Fair enough, Henry. Good discussion.
The problem with going back to the 19th century Ellis Island model of largely unrestricted legal immigration is the massive growth of the welfare state in the 20th century. Immigrants arriving back then had to either earn a living or receive help from relatives and private charities, so they were much less of a burden on the taxpayers.
Now if you are proposing a grand compromise where we agree to abolish ICE and open the borders after we first dismantle the welfare state, I’d be on board with that plan. Get back to me after you’ve gotten buy-in from the Democrats…