Deal says that birthright citizenship is a “magnet for illegal immigration.” It is also based, he says, on a (longstanding) “misinterpretation of the Fourteenth Amendment.” The first words of that amendment read, “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.”
Sen. Charles Schumer quoted those words during his questioning of Supreme Court nominee Samuel Alito. He pushed Alito to agree with him that they clearly required citizenship for all children born in America. “Do you agree this is a fairly clear and straightforward provision of the Constitution?” asked the senator. Alito responded that there were active disputes about the meaning of the phrase “subject to the jurisdiction thereof,” some of which could come before the Court, and therefore he declined to answer.
Schumer kept pressing him about the amendment’s “clear language.” “What imaginable argument could there be for a statute that Congress could deny the citizenship to those born in the United States, say, on the grounds that their parents were illegal aliens?” And again: “I simply ask you to give us an interpretation of one of the most direct and clear provisions in the United States Constitution.”
Schumer is wrong. The language isn’t clear and direct. “Subject to the jurisdiction thereof” is a legal term of art, not immediately accessible to laymen. Our instinct is to think that it means “subject to the laws thereof.” We assume that the amendment is saying that anyone who is born here, and can be prosecuted under our laws, is a citizen. But there are problems with that interpretation. For one thing, almost everyone on U.S. territory has to obey U.S. law. The common reading of the amendment thus reduces that qualifier, “and subject to the jurisdiction thereof,” to meaninglessness. Normally, constitutional provisions are interpreted on the assumption that each word matters.
John Eastman, a law professor at Chapman University who also directs the Claremont Institute’s Center for Constitutional Jurisprudence, argues for an alternative reading. He notes that the language of the amendment, proposed in 1866, was designed to provide a constitutional basis for the Civil Rights Act of 1866, which gave citizenship to “all citizens born in the United States, and not subject to any foreign power.” He also points out that Sen. Lyman Trumbull, one of the leading supporters of the Fourteenth Amendment, said that the phrase meant subject to the “complete” jurisdiction of the United States — that is, “not owing allegiance to anybody else.”
Sen. Jacob Howard, who introduced the provision in the Senate, agreed, explaining that children in Indian tribes, though subject to American jurisdiction in some respects, would not qualify for citizenship under the amendment. An amendment to make that clear was rejected as redundant. The Supreme Court initially followed this reading. Thomas Cooley’s influential 19th-century treatise on constitutional law also distinguished between a “qualified and partial jurisdiction” that subjected people to American laws, and the “full and complete jurisdiction” that qualified them for citizenship.
In 1898, however, a divided Supreme Court read birthright citizenship into the amendment — the interpretation that has prevailed ever since. (The Court did not, however, explicitly comment on the status of children born to people who were here illegally.)
Representative Deal and his colleagues are probably right to say that the Court got it wrong: The Constitution, as originally understood, does not demand birthright citizenship. It’s something that Congress ought to be able to bestow — or take away. But whether congressmen should try to take it away, at least for the children of illegal immigrants, is a different question.