National Security & Defense

What Conservatives Get Wrong about Birthright Citizenship and the Constitution

(Onur Ersin/Dreamstime)

Donald Trump’s immigration proposal has raised an issue that has never quite made it into the mainstream of American political debate: birthright citizenship. Are the children of illegal immigrants U.S. citizens? The answer, unfortunately, is “yes” — under the current understanding of the 14th Amendment to the Constitution enacted after the Civil War. 

As everyone knows from the history of that era, Congress passed the amendment to enfranchise the former slaves in the South. The first sentence of the amendment states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof [emphasis mine] are citizens of the United States.” I’ve read the congressional debates over that sentence, and its meaning is ambiguous. Yes, as Edward Erler pointed out Wednesday in a piece in National Review, Senator Jacob Howard (R., Mich.), the amendment’s sponsor, said “foreigners” were excluded from citizenship. But, in response to a question from Democratic senator John Conness of California, an Irish immigrant, as to whether the children of Chinese laborers, then pouring into his state, would be citizens from birth, Senator Lyman Trumbull (R., Ill.), the chairman of the Judiciary Committee, which had approved it, said they would be. Conness voted for the amendment based on that assurance, but his support for the Chinese immigrant community, then very unpopular in California, cost him reelection. The only group that everyone seemed to agree would be excluded were Indians living on reservations.

Judicial conservatives are usually skeptical of legislative history in interpreting statutes. And this is a perfect example of why that skepticism is just. As we’ve seen, senators made inconsistent statements about the amendment. Then there is the additional question of why, if Senator Howard really believed his amendment would exclude “foreigners,” he failed to say so in the text? By 1868 members of Congress had almost a century of experience with activist federal judges disagreeing over the meaning of several provisions of the Constitution: the Necessary and Proper Clause, the meaning of “freedom of the press,” and of course, the Due Process Clause of the Fifth Amendment, which was incorporated into the second sentence of the new 14th Amendment. 

RELATED: Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship

Senator Howard could have worded his amendment any way he wanted. Consider that the 1866 Civil Rights statute, enacted two years before the 14th Amendment and largely the work of Howard and Trumbull, began with this statement: “All persons born in the United States and not subject to any foreign power . . . are citizens.” That clearly excludes aliens. But that phrase was replaced with the more ambiguous “subject to the jurisdiction thereof” in the amendment. Why? Did the amendment mean something broader? It would seem so.

Could it be that the citizenship clause can evolve in a way that reflects the border crisis?

Then the Supreme Court weighed in. In Slaughter-House Cases (1872), which did not concern the citizenship clause, the Court stated in passing that the clause excluded “citizens or subjects of foreign states born within the United States.” A quarter century later, however,  in a monumental ruling (United States v. Wong Kim Ark) in 1898 about the citizenship of a child of legal Chinese immigrants born in California, the Court handed down the current interpretation of the citizenship clause. According to the ruling, everyone born on U.S. soil is “subject to the jurisdiction” of the U.S. except the children of foreign diplomats and enemy soldiers in wartime. No political allegiance to the U.S is required. True, the decision did not concern the children of illegal immigrants, but the interpretation of the citizenship clause plainly includes them. Conservative commentators who claim the Supreme Court has never considered the question are just wrong.

This does not mean the Court can’t reconsider the issue in light of the huge problem with illegal immigration today. Legal realists like me accept what has come before and think we need a dual approach to end birthright citizenship for the children of illegal immigrants: pass a law to end it and make persuasive arguments in court challenges that decisions on constitutional questions should be revisited over time. 

RELATED: Not Hard to Read the 14th Amendment As Not Requiring Birthright Citizenship — And Nothing Odd About Supporting Such a Reading

Some jurists, such as Judge Richard Posner of the Seventh Circuit Court of Appeals, believe a statutory fix to the problem will be enough. He evidently thinks federal judges will share his judicial realism and not adhere to outdated precedent. I disagree and think the lower courts would reject a legislative end to birthright citizenship. Certainly, the statute would instantly be challenged by the ACLU and litigious Hispanic groups like La Raza. A challenge to such a law would very likely be accepted by the Supreme Court. (It only takes four votes to grant certiorari.)

#related#It would be interesting to see how Justice Scalia, a textualist, would decide the case. The word “jurisdiction” has literally dozens of meanings in the law. He may believe, contrary to how it was decided in 1898, that “jurisdiction” means something more substantial than being physically present on U.S. soil. Typically, textualists do not respect precedent if they believe it was wrongly decided. 

Additionally, Article I, Section Eight of the Constitution provides that Congress has the power to “establish a uniform Rule of Naturalization.” Does that trump the 14th Amendment? The 1898 decision gave that provision short shrift. But I think Scalia would be receptive to an act of Congress designed to solve a pressing national problem which is plainly not motivated by racial animus. And this would put the five liberal justices in a difficult position. Do they decide the case by following an 1898 precedent interpreting the 14th Amendment? They ended the last term by doing just the opposite, ruling that gay marriage was mandated by the 14th Amendment because the meaning of the text had evolved over time. If our current understanding of the concepts of “due process” and “equal protection” can evolve in a way that suits liberals, could it be that the citizenship clause can evolve in a way that reflects the border crisis and allows Congress to act accordingly? It would be a blockbuster decision.

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