Law & the Courts

Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship

(Photo Illustration: NRO)

Donald Trump continues to bewilder political experts. He unabashedly wades into politically dangerous territory and yet continues to be rewarded by favorable poll results. He has clearly tapped into a reserve of public resentment for inside-the-Beltway politics. How far this resentment will carry him is anyone’s guess, but the Republican establishment is worried. His latest proposal to end birthright citizenship has set off alarm bells in the Republican party.

The leadership worries that Trump will derail the party’s plans to appeal to the Latino vote. Establishment Republicans believe that the future of the party depends on being able to capture a larger share of this rapidly expanding electorate. Trump’s plan, however, may appeal to the most rapidly expanding electorate, senior citizens, and may have an even greater appeal to the millions of Republicans who stayed away from the polls in 2012 as well as the ethnic and blue-collar Democrats who crossed party lines to vote Republican in the congressional elections of 2014. All of these voters outnumber any increase in the Latino vote that Republicans could possibly hope to gain from a population that has consistently voted Democratic by a two-thirds majority and shows little inclination to change.

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

Critics say that Trump’s plan is unrealistic, that it would require a constitutional amendment because the 14th Amendment mandates birthright citizenship and that the Supreme Court has upheld this requirement ever since its passage in 1868. The critics are wrong. A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the 14th Amendment.

Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true.

Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship.

Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.

Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

RELATED: End Birthright Citizenship Now: Barack Obama Makes the Case

Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S.

Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that, contrary to the reasoning of the majority’s holding, the 14th Amendment did not in fact adopt the common-law understanding of birthright citizenship.

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The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.

RELATED: Trump’s Immigration Plan Is a Good Start — For All GOP Candidates

Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government.

Nor was this the only legislation concerning birthright citizenship that Congress passed following the ratification of the 14th Amendment. As mentioned above, there was almost unanimous agreement among its framers that the amendment did not extend citizenship to Indians. Although born in the U.S., they were not subject to the jurisdiction of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe-by-tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become a citizen. Thus Congress used its legislative authority under Section Five of the 14th Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to the jurisdiction of the United States. A constitutional amendment is no more required today than it was in 1923.

A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation.

Legislation to end birthright citizenship has been circulating in Congress since the mid ’90s and such a bill is circulating in both houses today. It will, of course, not pass Congress, and if it did pass it would be vetoed. But if birthright citizenship becomes an election issue and a Republican is elected president, then who knows what the future might hold. It is difficult to imagine that the framers of the 14th Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Indians who had been born in the United States. Those who defy the laws of the U.S. should not be allowed to confer such an advantage on their children. This would not be visiting the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. would not be denied anything to which they otherwise would have a right. Their allegiance should follow that of their parents during their minority. A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation. No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I believe, is eminently just. The proposal to end birthright citizenship is prospective only.

#related#Political pundits believe that Trump should not press such divisive issues as immigration and citizenship. It is clear, however, that he has struck a popular chord — and touched an important issue that should be debated no matter how divisive. Both the Republican party and the Democratic party want to avoid the issue because, while both parties advocate some kind of reform, neither party has much interest in curbing illegal immigration: Republicans want cheap and exploitable labor and Democrats want future voters. Who will get the best of the bargain I will leave for others to decide.

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